A Not-So-Happy Constitution Day

by S.M. Oliva, Mises Blog
Sep. 18, 2010

Roger Pilon, the Cato Institute’s B. Kenneth Simon Chair in Constitutional Studies, is understandably excited today, the 223rd anniversary of the signing of the United States Constitution by the delegates to the Philadelphia Convention:

The Constitution was not perfect -- what human creation is? -- not least in its oblique recognition of slavery, believed necessary to ensure union. But it provided for amendment, as with the addition of the Bill of Rights in 1791 and the Civil War Amendments several decades later, which ended slavery and brought the Bill of Rights to bear upon the states. All things considered, especially when we look at the rest of the world, the Constitution has served us well, enabling us to prosper in greater freedom than most have ever enjoyed.

Over the past century, however, we've allowed governments at all levels to grow far more than the Framers ever would have imagined the Constitution allowed, until today the modern redistributive and regulatory state is everywhere upon us. James Madison, the principal author of the Constitution, wrote in Federalist 45 that the powers of the new government would be "few and defined," leaving us largely free to plan and live our own lives. If we're to restore that Constitution of limited government, it will take more than courts and "politics as usual" to do so. We've got to take the Constitution seriously not just on Constitution Day but on every day.

The key statement here is at the end of the first paragraph: “All things considered, especially when we look at the rest of the world, the Constitution has served us well, enabling us to prosper in greater freedom than most have ever enjoyed.” I respectfully suggest that Pilon confuses correlation with causation. American freedom and prosperity exists -- and has existed -- in spite of the Philadelphia Constitution, not because of it.

Pilon speaks of “restor[ing] that Constitution of limited government,” referring to a state of affairs that never existed. Yes, government was far smaller in the early days of the Constitution then now, but the desire and potential for the modern superstate was already encoded in the DNA of the founding document. It merely took a few decades for the new ruling class to entrench itself, using the Constitution, and a few government-provoked crises (including that pesky Civil War), to make the necessary great leaps forward.

Pilon says, “We've got to take the Constitution seriously ... every day.” Um, no. I don’t take seriously a document written by a bunch of guys who have been dead for two centuries. Forget the fact many of them owned slaves. Actually, let’s not forget that, because it’s important in this respect: Like any document written by acting man, the Constitution reflected the self-interests of its drafters. Not that there’s anything wrong with that. But the people alive today have different interests, values, and knowledge of their world. There’s no good reason to continue to chain ourselves to an 18th century political compromise between the merchant classes of New England and the plantation owners of the South.

Pilon points to the fact the Constitution “provided for amendment” as a strength. But any agreement or contract can be amended. That’s nothing special. And in practice, the constitutional form of government has proven quite static. There has been little in the way of dynamic change favoring individual rights. Pilon neglects to mention amendments like Prohibition and the direct election of senators, which greatly increased federal power without any countervailing protection for individual rights. Even the vaunted Civil War Amendments Pilon cherishes had the primary effect of enhancing and entrenching federal power, which led to the emergence of the regulatory state.

As for comparing the U.S. to the rest of the world, how about comparing us to the nation our ancestors seceded from, the United Kingdom. Don’t worry, I’m not making the Kinsellan argument that independence was a “mistake,” but I think it’s fair to compare the evolution of the post-Revolution governments on both sides of the pond. George III, the king who prompted American revolt, proved to be one of the last monarchs to exercise much direct control over the British government. Due to the absence of a single constitutional document -- it’s erroneous to say the British constitution is “unwritten” -- the British system has proven easier to amend and more flexible than the American system.

Since 1787, the British reduced the monarch to a ceremonial head of state, transformed the House of Lords from a small body of powerful hereditary peers to a large body of mostly appointed members, introduced universal suffrage for elections to the House of Commons, transferred the judicial powers of the House of Lords to an independent supreme court, and reinstituted regional parliaments for Wales and Scotland. Those last two changes happened within just the past 15 years. And the recently installed Conservative-Liberal Democrat coalition government has promised a referendum to replace the “first past the post” voting system with an “alternate vote” that would strengthen the viability of third parties. (Come to think of it, when have you ever seen a “coalition” government in the U.S., a committed, two-party-only country?)

Now, that’s not to say the British government’s policies today are better than those of their American counterpart. It’s a draw at best. In many areas, the British are more socialist and anti-liberty -- but compared to the U.S., it’s a difference of inches rather than yards. You certainly can’t say the American political system is more democratic or respectful of the individual’s voice. For example, each British MP represents approximately 93,000 people; in contrast, each U.S. House member represents about 713,000 people, giving Americans about one-eighth the representation of their British brethren.

Even the upper chambers are quite disparate: the House of Lords averages approximately one member for every 81,500 people, while the U.S. Senate has averages one member per 3.1 million people. You can say that’s a ridiculous comparison, as the Lords are appointed while the Senate is elected, but again, I think that’s more a difference of degree than absolutes. Consider that 15% of the current Senate has held their position for at least 25 years, and the recently deceased Robert Byrd held a half-century chokehold on his seat. The truth is, since the switch an appointed Senate to an elected body, senators are fundraising-and-tax-spending machines that, thanks to the seniority system, have little incentive to restrain the government or defend the individual.

The House of Lords certainly has less constitutional authority than the Senate. The Lords can only revise, but not veto, measures passed by the government in the Commons. The Lords cannot filibuster bills or reject government nominees as the U.S. Senate can. But it’s not as if the Senate uses those weapons with any great frequency either.

Again, this isn’t about deciding whether the American or British system is better. My point is that the choice of monopoly government is a largely independent matter from the prosperity or liberty of the people. There are several factors that allowed American society to develop in relative freedom and prosperity during the 18th and 19th centuries that had nothing to do with the Constitution, including (1) the existence of a large, mostly unsettled land mass that enabled people to homestead property independent of feudal or monarchial restrictions; (2) unrestricted immigration, which prevented cultural homogenization, a necessary condition of theocratic and dictatorial governments; (3) the relative absence of guilds and monopolies; and (4) geographic isolation from Europe and its affairs.

The history of constitutional government has been to ignore these factors. Instead, the principal effects of the Constitution were (1) the replacement of common law with “judicial review” and regulatory agencies; (2) institutionalized class warfare, starting with the original Constitution’s concessions to slaveholders; (3) the development of an expansive federal patent power that far exceeded even the most abusive state-level regulations of commerce; and (4) permanent armed forces that largely operated outside of the United States.

There’s no putting the genie back in the bottle or “restoring” a lost Constitution. What we see today is the direct result of the Constitution, not of ignoring it. The Constitution was an experiment that failed. It’s long past time for libertarians -- and I’m not suggesting Roger Pilon is one -- to acknowledge that and move on.