Libertarians err when they use the Constitution to further their philosophy for freedom. While some say they want to “return to the Constitution” and see a proper role for a limited federal government on the basis of it being an ultimate guarantor of liberty, they nonetheless argue that some constitutional functions (like eminent domain and taxation), violate individual freedom. So which one is it? Is it possible to both support some government laws and not others? On what grounds?
The Constitution is nothing more than a dead letter, a non-binding “social contract” and ultimately a historical artifact that tourists go to see when they visit Mordor, D.C. Indeed, as Keith Preston mentions (in the comments) “the Constitution is what it is: A landmark document in the evolution of political thought and the political charter of the classical American republic that has been de facto overthrown for generations. State’s rights went out the window with the Civil War and Reconstruction and the rest of the Constiution [sic] was destroyed over the course of the 20th century. The few strands that remain, like due process and free speech, are now being eradicated as well.”
As a blog aficionado, I cringe whenever I read statements such as “we have freedom of speech because of the First Amendment” or “the Second Amendment protects my right to carry guns.” Things like that are incredibly contrived. It is already bad enough that they are coming from so-called “libertarians” who, really, should know better. The Constitution, even if we were to accept the notion that it binds us, is just a chain on the feds. It does not give anyone freedom.
The most common argument goes like this: “We would be better off if we returned to the Constitution.” Fair enough. We would be, but that’s not because the Constitution equals freedom. That statement is only true now because we are living in an era of unbridled sociofascism and thus we would enjoy more liberty if the Federal government were reduced. But that argument, however, cannot ever be used to advance the cause of liberty. It is at best a piece of historical data. Libertarianism aims to be universally valid; it must apply anywhere and any time. Thus, would today’s libertarians favor the Constitutional Convention? Would they favor replacing the Articles of Confederation with the Constitution? Surely not, unless the Articles were to be replaced with a Giant Nothing. If the Constitution gave more power to the central government than it had under the Articles — and it did — then libertarians should have opposed it then (and some did) as they should today.
Libertarians must refrain from positivism, empiricism and historicism. They shall succumb intellectually otherwise. The philosophy of non-aggression is not favored because it would promote any particular outcome. Aggression is simply not justified. Anyone who does not agree with that is either confused or a criminal, or both. It is not a vice to desire, say, the total elimination of murder, nor is it a virtue to favor moderation in murder. But to say that a particular government law should be followed because it gives us freedom, is erroneous and flawed.
That a law can be used to enforce restrictions on government abuses is one thing. (Even then, the imposition of a law on those who do not consent to it is also an act of aggression; it is theft of land and the involuntary inclusion into a group.) But it’s something totally different to claim that the law itself can bring about freedom. There is no duty to obey. And that, as Spooner reminds us, is not treason.