The other evening, I watched C-SPAN coverage of the Cato Institute’s 25th anniversary dinner. It was interesting to observe various speakers pulling from their pockets small, leatherette-bound booklets, published by Cato, containing both the Declaration of Independence and the United States Constitution. They held them up and recited the oft-quoted mantra of the evening: "free markets and limited government." The ceremony reminded me of nothing so much as the practice in China, during the Cultural Revolution, of true believers carrying — and quoting from — the little red book of Chairman Mao’s aphorisms.
This mantra continued to be invoked throughout the evening, as the speakers lamented the parallel diminution in liberty and expansion of state power: increased economic regulation, governments siphoning off some 45% of the wealth produced each year, and decreasing parental control over government schools (references to war as the most flagrant expression of statism were carefully avoided, however). As I listened, I asked myself: what objection do these people really have? They celebrate the Constitution, carrying it around with them like a book of catechisms and, at the same time, complain that this document has not restrained the power of the state!
There is an innocence, born of years of institutional conditioning, that leads most people to believe that the destructive powers of the state can be limited by the drafting and adoption of constitutions. Such hopes were expressed by seventeenth and eighteenth century philosophers who, building upon the capacity of private contracts to define the limits of interpersonal behavior, sought to extend such benefits to the social realm. But the abstract reasoning that underlay such expectations was soon confronted by the experiences of Realpolitik.
One would have thought that a group of people who believed in "free markets" would be astute enough to recognize the self-interest motivations that underlie all human behavior; and would further perceive that creating an instrumentality of coercive power would be far too dangerous a temptation to place before men and women. No more than should a bowl of candy be placed before a group of children with the expectation that it not be touched, should we expect political systems to be immune from mischief.
Given that a government, by definition, enjoys a monopoly on the use of force within a particular territory; and given that human beings are motivated to pursue their self-interests in the least costly method to them of doing so, what reasoning or historical experience would lead one to the conclusion that people would be disinclined to use the power of the state to advance their interests? And if some would be tempted to employ such powers to their advantage, why would we not expect others to do so as well? Furthermore, why would we not expect the state, itself, to formulate its own self-interest agenda to aggrandize its only available asset: coercive power over the lives and property of people?
The "limited government" advocates respond to such questions by invoking the power of words as a restriction on state power. The Constitution contains language that carefully defines the purposes and limitations of governmental authority, and state action that exceeds such limits will be acknowledged as "unconstitutional." The arrangement sounds so rational, but fails to take into account one of the fundamental shortcomings in all language: words are abstractions of reality and, in order to be applied to the world, must be interpreted! Alfred Korzybski stated the proposition more succinctly: "the map is not the territory." At best, words give us only approximations of shared meanings, and our efforts to communicate clearly with one another necessitate our use of as much precision as we can muster. Around the edges of every word, however, is a fuzziness that invariably succumbs to the Korzybski principle.
The following example will make the point. The produce manager of a grocery store has one aisle devoted to "fruits" and another to "vegetables." In which aisle should he put peas, tomatoes, and avocadoes? Taxonomically, they belong with the other fruits, but by custom they are eaten as vegetables.
The fuzziness problem becomes even more troublesome as we move into words of a more abstract nature, such as we find in the United States Constitution. This instrument of allegedly "limited powers" contains a preamble that defines its purposes as the creation of "a more perfect Union," which will "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty." The specific grants of power to Congress are then spelled out in Article I, which include, among others, the "Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." How do such words limit governmental power? What more would any tyrant need to justify his actions than these?
But Article I goes on to provide, among others, the power "To Borrow Money on the credit of the United States," "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Where, in such words, does one find any clearly defined restriction on government power?
What do we mean by "Justice": is it, to paraphrase Thrasymachus, only whatever is in the interest of the stronger party, or nothing more than the redistribution of violence? Is the "general Welfare" to find expression in the utilitarian principle of "the greatest good for the greatest number," or "the greatest good for the greatest guy?" Against what must we mount a "common defence": the "heartbreak of psoriasis?" Bad breath? Bad music?
Korzybski’s admonition is revealed in the irony that the same words conservatives see as limiting governmental powers, liberals see as providing a means for the expansion of such powers! Words — particularly those as general as are used in the Constitution — must always be interpreted and, as Anthony de Jasay has so insightfully stated it, "collective choice is never independent of what significant numbers of individuals wish it to be." Conservatives continue to wrap themselves up in the kinds of knotted thinking about how the Constitution is what keeps the government from doing all the terrible things that it does. Nevertheless, the harsh reality is that there is nothing the federal government does that cannot be interpreted as being within the meaning of these empowering words!
Suppose that you and I enter into an agreement by which I will have complete control over all your assets — your bank accounts, investments, real estate, etc. — subject only to the proviso that my authority can only be exercised for your "welfare." Don’t you see how I could rationalize an attractive salary, health care and other fringe benefits, a new car and office space, and trips to foreign countries (to check out alternative investment opportunities, of course) as being necessary for my efforts on your behalf? A court of law might conclude that I was engaged in over-reaching, perhaps, and restrain my ambitions. But courts are part of the enforcement machinery of the state, and have little incentive to confine governmental powers, even if they were otherwise inclined to do so.
For those who would put their faith in the judicial branch of government to restrain the powers of the state, take a look at how the courts have interpreted both congressional powers, and the "bill of rights’" supposed limitations on such powers. Government authority has been given an expansive definition, and individual liberties a narrow one. The courts are continually declaring that the "necessary and proper" clause "is not limited to," or that the "commerce clause" is "not confined to," or that some other grant "does not restrict" the government in some way. By contrast, First Amendment "free speech" rights "do not include," or "freedom of religion" "does not mean," or some other right "does not extend to" an activity the state wishes to restrict. "Free speech" has long been subject to a "clear and present danger" test — a limitation not found in the First Amendment — leaving us with the realistic interpretation that the state may not restrict free speech unless it chooses to do so!
Once an agency of force has been set up to govern the lives of people, there are no words or other magical incantations to which resort may be had to guarantee the limited exercise of such powers. A friend of mine, Sy Leon, illustrated this with the following example. Suppose that the Constitution limited the federal government to only one function: to "regulate time." Play around with such words, yourself, and you will see how the present federal power structure could be rationalized from such "limited" authority. Legislation could be enacted providing that "no one shall spend his or her time working for less than $5.80 per hour;" "no one shall spend his or her time driving an automobile at a speed in excess of 55 mph;" "all persons between the ages of 18-35 shall spend two years of their time in military service;" "no one shall spend their time using marijuana or other defined drugs;" etc., etc.
When we recall that the Soviet Union had a constitution — modeled after the United States Constitution — it should be evident that liberty can never be guaranteed by the scribbling of words on parchment. Those who wave copies of the Constitution around as symbols of their liberty, remind me of dogs who have learned to carry their leashes in their mouths.
A society will remain as free or as enslaved as the conscious dispositions of individuals determine it shall be. Just as the roots of oppression are found in passivity, the foundations of our liberty reside in highly energized and focused minds that insist upon their independence. There are no shortcuts, no structures or doctrines that can be erected, no hallowed documents to be revered, to save us the effort of continually challenging those who would presume to exercise authority over our lives.
May 14, 2002
Butler Shaffer [send him e-mail] teaches at the Southwestern University School of Law.