Constitutions historically ground states legally. They enshrine politics at the heart of a society (politics being defined here as aggressive not defensive power). Today, modern constitutions all over the settled world continue to give politics a stronger position in every society than they have ever had before. If politics fundamentally act to disable the proper and beneficial working and progress of society, as I and many others believe and have argued, then we need to examine the constitutionalism that introduces and supports this politics. This article has that purpose. I will provide four theorems of politics to show where such a constitutional grounding must logically lead.
The anti-federalists opposed the Constitution of 1788, while the federalists supported it. They made opposing arguments based on opposing theories, and these arguments are preserved for us in the Federalist Papers and the Anti-Federalist Papers. The questions they debated are questions of politics, that is, power relations. And the dynamics of power relations as they work out in practice are complex. Establishing a power structure puts a theory into action. Evaluating the theory makes the welter of observed political detail intelligible. As time passes, we observe how the theory is working itself out. In some cases, it takes only a few years to work out (as in France after Napoleon, Germany after 1918 and again after 1933, or as in Iraq today) and in other cases it takes longer (as in Russia after 1917) or very much longer (as in Rome after 44 B.C.).
In addition to theory, we have experience. Lincoln in 1861 said "Our popular government has often been called an experiment." Experimental outcomes relate to theories. We have the benefit of 220 years of subsequent U.S. experience to help us judge the competing political theories in these early documents. And why should we evaluate them? Because we continually choose our method of government and that choice influences our lives for good or evil.
National state versus states and individuals
The theory of government written into our original Constitution has surely contributed to our present form of government. It is not the only contributor. New theories have been devised and implemented outside of the Constitution, and the Constitution has been amended. Yet these dynamics took place under allegiance to this same document. To what extent are the obvious evils of our present government traceable to the Constitution and the establishment of our national government?
In Anti-Federalist Paper #3 (AF #3), "A Farmer" (thought to be John Francis Mercer, a non-signing member of the Constitutional Convention), distinguished national from federal government. National government "operates on individuals." Federal government binds states into a league or confederacy (which is why some anti-federalists at that time called themselves federalists). Today the distinction between national and federal has been lost. But the substance of the distinction he made is of great political importance. Since the powers of the Constitution operated on individuals, its government is national. Indeed, AF #1 (written by "A Federalist") called the proposed state an empire: "I had rather be a free citizen of the small republic of Massachusetts, than an oppressed subject of the great American empire."
The anti-federalists accurately saw the new power relations embodied in the proposed Constitution. The Congress could lay taxes upon individuals. This meant national taxes. It could call forth the militia, arm them, train them, and use them. This meant national armed forces. It could provide and maintain a national navy. It could declare war. It could regulate the commerce with foreign nations and among the several states. This power did not touch individuals directly, but Congress also had power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers…" It would be found necessary and proper to regulate the commerce of individuals in order to regulate that of the states. This meant the national regulation of commerce. Since almost everything relates to commerce, Congress could regulate everything. Moreover, Congress was empowered to "provide for the common defense and general welfare of the United States…" The "general welfare" could mean practically anything the national government said it was. When combined with the "necessary and proper" clause, the scope for passing laws became almost unlimited.
The limitations placed upon the national government rested upon power relations (a) within the government itself, (b) with the people of the United States, and (c) with the individual states. Sophisticated theory is not required to predict the outcome of some of these power relations. The executive branch of government, being a smaller and more united organization and being given powers to act and command, would eventually take precedence over the Legislature. This would happen despite the power of the Legislature to tax. In a way, the process of power accumulation of the presidency would be analogous to how kings accumulated power from nobles. A president divides and conquers, playing off one legislator against another, because he has the final power to sign a bill or not sign it. He is able to originate programs and appeal to the public over the heads of Congress. He is united and speaks with a single voice that is heard by all, while Congressmen appear as a divided, subordinate, and contentious lot. He can simply issue executive orders, and what can Congress do? The impeachment power is rarely used because it threatens the power of the whole government and can only bring the Vice-President into power. Used too often, Congress will be accused of subverting the people’s will. If an impeachment fails, Congress will be weakened for years afterwards. All of this suggests that the Executive would come out the winner. It would gain power over the other branches of government.
In the contest between the national government and the people that the Constitution established, there could be only one outcome: the ascendant power of the national state. The Constitution bestowed monopoly powers on the national government. The powers to tax and regulate can destroy almost any opposition in society. The people never had a chance. They were licked right from the start.
It took the War Between the States to settle the winner of the contest between the states and the national government. Mercer foresaw this titanic struggle: "In a national government, unless cautiously and fortunately administered, the disputes will be the deep-rooted differences of interest, where part of the empire must be injured by the operation of general law; and then should the sword of government be once drawn (which Heaven avert) I fear it will not be sheathed, until we have waded through that series of desolation, which France, Spain, and the other great kingdoms of the world have suffered, in order to bring so many separate States into uniformity, of government and law; in which event the legislative power can only be entrusted to one man (as it is with them) who can have no local attachments, partial interests, or private views to gratify."
Politics versus self-government
The Constitution instituted national politics and a strong national government. It elevated politics to a higher and more potent status. The original Constitutional sin, I will argue, is the politics itself that Constitutions introduce. I remind the reader that politics here is defined as aggressive or coercive power relations, not power used in defense of natural rights.
Mercer in AF #3 clearly posed the two main alternatives: "If the body of the people will not govern themselves, and govern themselves well too, the consequence is unavoidable — a FEW will, and must govern them. Then it is that government becomes truly a government by force only, where men relinquish part of their natural rights to secure the rest, instead of an union of will and force, to protect all their natural rights, which ought to be the foundation of every rightful social compact."
We will have either self-government to protect natural rights using justly applied force (defensive force) or a government "by force only," that is, a government of unabashed coercion and violence. This is the kind of government that we today have.
After 1788, the future power relations would take years to work out, but they were embedded in the theory of government that the Constitution advocated. I do not refer to the specifics of government that were proposed in that document. I refer to the assumption or implicit theory of the document that politics or power relations should be adopted front and center by Americans or that politics are necessary. The state is evil, but is it a necessary evil as the Constitution’s supporters claimed? Mercer and other anti-federalists said "No." In that tradition, market anarchists say "No."
The theory embodied by the Constitution with its panoply of powers was not self-government. It was not restricted to enforcement of natural rights. It was a central state, complicated to be sure, but a central state nonetheless, and a central state over individuals. The American Constitutional experiment was not and never has been an experiment in self-government. It was an experiment in national government. It was an experiment to see who would dominate the power relations: the people, the individual states, or the national government.
Let us now work out the theory of political relations as embodied in politics. The goal is to make the complexities of history intelligible. When we see where we have come to, why we have come to this point, and where we are headed, then each of us will be in a better position to judge where and how to go next.
Power relations necessarily do four things. First, given that there are politics, it follows that there will be exercises of power in which some individuals will gain while others lose. This almost is a defining trait of politics. It happens because power gives some persons the ability to obtain goods from others without their permission and without a voluntary exchange being concluded. Since goods are desirable at costs below their values, politics creates and then encourages stealing. Politics involves getting and using power, and power leads to taking. Politics is the opposite of a process of free exchange in which both sides gain. I’ve previously put it this way: "Rulers are like anyone else. They think in terms of loss and gain. Self-preservation or security is prevention of loss. More power and wealth are gains. Rulers, being men of power, think and act in terms of force and taking." Similarly, de Jasay says "All nonunanimous politics — and unanimous politics would of course be redundant, and an oxymoron — is redistributive." Politics is all about taking from some and giving to others (including the rulers). Theorem one is this: Politics leads to theft. Having aggressive power is but one short step from using it, so that we may also say: Politics is theft.
Second, which is a consequence of the ability to gain via the power relations (by politics), is this theorem. Those who have power seek more power. Theorem two: Politics nurtures the growth of power. Once a power center is created, like a national state, that state will attempt to increase its power. Power is a good, both in itself and because it can be used to obtain other goods. Men in power have already shown they desire power, so we predict they will seek more. Our only assumption in reaching this conclusion is that their tastes for power do not diminish while in office. Naturally, this will depend on the individual’s preferences as well as the costs and benefits they perceive of seeking more power. But since a state is an organization peopled by a number of men, all of whom have shown a thirst for power, we can be very sure that the organization will seek more power even if an occasional individual has a change of heart. The odds of changing the minds of 30 men or a majority of them are far lower than the odds of one man changing. Hence, our assumption that tastes for power do not diminish while in office is a very weak assumption. And if we follow Lord Acton, we can assert the opposite, that power corrupts and will increase the taste for power.
The moment that a society takes politics for granted, condones it, and allows it, a competition for that power and its extension arises. To reach this conclusion, we need only the very weak assumption that a number of individuals or groups want power. Since power is a good and since there is a demand for more power, there will no doubt arise competition for power. This is the third consequence of politics and another theorem: Politics begets competition for power.
The outcome of such a competition can be a balance of powers. But such an outcome can be only temporary, because the individual power-seekers will constantly be on the lookout for any advantage that will place them in a dominant position. Hence, we arrive at a fourth theorem: Politics nurtures centralization of power. Politics motivates attempts to centralize power in as few hands as possible. Within the United States, the drive is toward the national government ruling the 50 states and all individuals within them. Within the government, the drive is toward the President ruling the other branches of government. Within the world, the drive is toward one state ruling all other states. Within the world, the drive is toward one government ruling every person in the world. In the limit, the drive is toward one man having power over every other man. At times, we have seen dictators with tremendous power. We have a presidency that has such centralized power. Each president has enough nuclear weapons at his disposal to destroy vast stretches of the earth and mankind. In this sense, the president "owns" us; he owns our lives or at least has an option on them.
I restate the four theorems in one place for convenience:
- Politics leads to theft. Politics is theft.
- Politics nurtures the growth of power.
- Politics begets competition for power.
- Politics nurtures centralization of power.
In a way, these propositions are so basic and acceptable that they seem trivial. Yet they are also far-reaching, of great importance, not widely appreciated, and perhaps easily forgotten. They show to where the introduction of politics into a society leads. According to Robert Yates, experience supports these ideas. After deriving them, I find that Yates (“Brutus”), the anti-federalist who subsequently published the Secret Proceedings and Debates of the Constitutional Convention, 1787, wrote in the AF #17: “Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over everything that stands in their way. This disposition, which is implanted in human nature, will operate in the Federal legislature to lessen and ultimately to subvert the State authority, and having such advantages, will most certainly succeed, if the Federal government succeeds at all.” Far more eloquently than I have, he affirmed the truth of statements 2—4.
Taken to the logical limit, politics produces a society with one man ruling over everyone else. This is not usually seen, but there is plenty of evidence that societies have come quite close. There are plenty of regimes striving in this direction. I do not exclude the U.S. The dynamics of power necessarily push in this direction. The remedy is to disable the state and the constitution that is its heart. Politics is clearly a poison that, in large enough doses, kills the patient. Not only that, it kills patients in other societies through warfare.
In smaller doses, politics sickens and disables the patient. The patients today are many sick societies throughout the world that feature many individuals whose progress and well-being are being stymied by the poisonous constitutional institutions and states in their midst. The remedy is more self-government, the more the better. However, since politics nurtures the growth of power and competition for that power, no society can stand still. It either must aim for complete self-government, or else it will find that it is headed toward domination of society by state.
There are those who believe that the state, in a small and controlled dose, benefits the patient as some poisons do. This position is contradictory, however. There cannot simultaneously be control and non-control. A state has a monopoly of power, which means it has control. The society and the individuals in society do not have control. And once a state is created, then the four theorems come into play. The dynamics of power play out as a tendency to an increase in the state’s powers, checked only by the costs of exercising excessive state power that show up via resistance, rebellion, non-compliance, sabotage, boycott, strike, and revolution, etc.
Little of what I have said above has an ethical or moral content. My goal was to present a theory of politics that holds regardless of one’s political views. There may be those who believe that empire is a good thing or that suppressing individuals is a good thing. They may prefer politics as the vehicle to accrete power. They may prefer constitutions and states.
My view, expressed many times before, is that politics is evil. Aristotle has written that "Man is by nature a political animal." Man can and does choose evil. He does steal. He does steal and kill through politics. Man does habitually use politics, as Aristotle avers. This in no way conflicts with the statement that politics is evil. It in no way conflicts with the view that we will be better off if we aim instead for self-government. I do not interpret either Aristotle’s statement or man’s nature as a cause for either undue optimism or pessimism. Fatalism does not follow from observing man as he is and will be. The short course of recorded history reveals that man has on numerous occasions managed his affairs beneficially without constitutions and states, and without setting off a dynamic that leads to permanently enslaving a large portion of mankind. Moreover, self-government is now and always has been the rule in the major spaces left unattended by the national state. I conclude that we have a choice. We always have a choice. Mercer stated it in 1788: "If the body of the people will not govern themselves, and govern themselves well too, the consequence is unavoidable — a FEW will, and must govern them."