Few holidays are more enjoyable than the Fourth of July, when Americans
celebrate our nation's independence from British tyranny and the
founding of a new nation based on individual liberty and limited
government. It's easy to get caught up in the fireworks, barbecues
and patriotic parades that remind us of our "freedom-loving" land.
That's as it should be.
Yet, looking around at our enormous federal government, at courts
that routinely usurp the rights of individuals, at a burgeoning
"war on terror" that expands police powers into every sphere of
our life, and at a voracious welfare state that promises to meet
every citizen's every whim (paid for by somebody else), I'm left
wondering whether there's much here that would be recognized by
the nation's founders.
And I haven't even mentioned the growth of the Nanny State, whereby
modern-day Puritans tell us where we can smoke, what we can drink,
how to raise our kids, what to pay our employees, what to do with
our garbage, how much banks should charge in fees, what kind of
vehicles we should drive, what we can build on our own land, ad
I often wonder whether Americans really understand and prize their
liberties, or whether we are still a relatively free and prosperous
land because we are living off the fumes of a once-great system.
If the nation were to dispense with the Constitution as it was
written and replace it with something new that reflected the current
values and outlook of the vast majority of Americans, what would
Most Americans would no doubt adopt, without much debate, the form
of our current government. Some citizens would argue for a parliament
or some other process, but I wager that we would end up with a Congress,
an executive branch and a judiciary, much like we have today.
Some amendments, perhaps the First Amendment with its establishment
clause regarding religion and its protections for free speech and
its right to a free press and free assemblage, would undoubtedly
be accepted verbatim.
But other amendments would not come out unscathed. Can you imagine
modern Americans accepting a Second Amendment guaranteeing the right
to keep and bear arms?
How about the Fourth Amendment's protection against search and
seizure? It might make it, but only if law enforcement lobbies were
kept away from the Constitutional Convention. And only if the feds
couldn't persuade the public to loosen up the standards in order
to make it easier to fight the war on terror.
I wonder whether the Fifth Amendment's restrictions on taking private
property for public uses would stand, given that these days, even
with the Fifth Amendment in place, governments routinely take private
property to give to other, politically favored private owners. I
can almost hear the municipal lobbyists complaining that the requirements
for due process and just compensation make it too difficult to "redevelop"
The big amendment that would never make it into any modern Constitution
would be the Tenth Amendment: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the people."
Not that it would matter, given that no one follows it anymore
Not many powers are specifically delegated to the federal government
in the U.S. Constitution. The vast majority of what the federal
government does would not pass muster - if the intent of the founders,
rather than the clever contortions of liberal courts, were the determinant
of constitutional meaning.
Even more troubling: Americans would no doubt include in a new
Constitution the "positive" rights the founders eschewed. It would
be filled with "rights" to education and housing and health care
and whatnot. The problem is that when the government promises things
to people, someone else must be forced to make those things happen
and the government gains power to impose its will on us all.
Your "right" to free health care means someone else must be coerced
to provide that service for you, or at least others must be forced
to pay for it. No way around it.
America's founders created a system of "negative rights." As the
Register's libertarian adviser Tibor Machan explained in a 2001
article for The Freeman, "Natural rights - or, as they have been
un-euphoniously dubbed, 'negative rights' - pertain to freedom from
the uninvited interventions of others. Respect for negative rights
requires merely that we abstain from pushing one another around."
Notice the political debates in America today. They rarely center
around the protection of our natural, or negative, rights; they
almost always are about some interest group demanding rights to
this or that, and how much force and public funds the government
should use to secure those demands.
Can you imagine the founders, who viewed the states as independent
entities, accepting the idea of a Department of Education, whereby
bureaucrats in Washington could tell school boards in Des Moines,
Tallahassee or Fullerton what they must teach?
Can you imagine what the founders would say about the Patriot Act,
which gives federal police agencies unprecedented power to monitor
Americans in the name of fighting against terrorists? Actually,
we needn't imagine what they would say. Benjamin Franklin argued,
"They that can give up essential liberty to obtain a little temporary
safety deserve neither liberty nor safety."
What would the founders think about a nation that has standing
armies in so many countries?
Again, no imagination necessary. As George Washington said in his
farewell address, "The great rule of conduct for us in regard to
foreign nations is, in extending our commercial relations to have
with them as little political connection as possible." Nation-building
in Iraq clearly wouldn't fit that standard.
Would the founders have accepted a government that tells business
owners whom they must hire, how much they must pay and exactly how
the furniture must be configured to conform to a federal disabilities
Would they have accepted a government that takes 40 percent or
more of the average person's earnings to support standing armies,
mega-bureaucracies, federal agencies and other entities that they
never envisioned would even exist in a free America?
Frankly, I think they would look at modern America much in the
way that they looked at their former British masters. They, perhaps,
would pen a Declaration of Independence that included a list of
indictments of how the sovereign had usurped the powers of the people
and would demand freedom or wage a war of independence.
Chew on that as you enjoy the fireworks.