Skip to comments.The Conservative - Libertarian Schism: Constitutionalism And Freedom
Posted on 07/15/2002 6:00:15 AM PDT by fporretto
This essay is an extension of some of the ideas in an earlier post, which may be found at:
Since the posting of the abovementioned essay, a number of FReepers have written me to comment on "the missing ingredient" of libertarianism: a respect for the law, in particular for the supreme law of the land, the Constitution of the United States. Adherents to the libertarian philosophy, they claim, are entirely too willing to flout the law and to disregard Constitutional stricture in their boundless devotion to principle.
I won't dismiss the charge out of hand. It has some substance. And constitutionalism is an important element in the defense of liberty, as we shall see. However, to condemn a group or its animating ideal because, at a particular point in time, what it advocates is outside the law is a bit shortsighted and low on context.
First, the negative aspects of rigid adherence to the law must be admitted. A case in point: There was a time when slavery was not only condoned by the Constitution and the law in several states, but the other states of the Union, against their own law and the inclinations of their citizens, were compelled by the Fugitive Slave Act to return escaped slaves to their "rightful owners." No one would rise to defend these legal obscenities today, yet at that time, they were enforced with federal power. Those who defied them were not villains, but the heroes of the time. Like another great Hero, the greatest known to history, they came not to overthrow the law, but to fulfill it.
Another case in point: At the conclusion of World War II, the Allied Powers imposed war crimes trials on defeated Germany and Japan. The Nuremberg Tribunal executed or imprisoned many persons, not all of whom were Third Reich policy makers, and not all of whom were personally guilty of direct violence against undeserving victims. The argument used to convict them was that they were instruments in the Nazi death machine, that they knowingly participated in organizing its crimes against humanity and giving them the patina of legality, and that the written law of the Reich, which often explicitly prescribed their deeds under threat of horrific punishment, was no defense. Many judges were imprisoned for life on this basis.
These examples and others like them suggest that there are limits to the fidelity a man owes to the written law. Of course, opinions will vary as to where those limits lie, but a key element of our founding tradition is the recognition that they exist:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. (From the Declaration of Independence)
But let it not be thought that written law and its observance are merely shackles for the citizen. The concept of written law, properly understood, and the principle of constitutionalism are the best formal safeguards for freedom that any society has ever devised. They must be twisted and abused to be made into instruments of despotism.
A side observation: Isn't it one of the major criticisms of the federal government at this time that the overwhelming majority of "laws" are made, not by Congress, whose members seldom even read the bills they vote on, but by the unelected regulators and bureaucrats of the "alphabet agencies"? Isn't it a great part of our unhappiness with Washington that the gigantic Federal Register, whose contents are legally binding on every American, is produced by faceless men no voter can remove, and is as fluid and elusive as the proverbial butterfly of love?
The Federal Register, which is arguably more important to American life than any other emission of the federal government, fails to exhibit the most important, legitimizing characteristics of written law -- and from here we pass to what those characteristics are.
To possess widely recognized legitimacy:
In the United States, at the federal level, that means the law must be made by Congress, with approval by the President and contingent sanction from the federal courts. It also means that the law must conform to the requirements of the Constitution and the great tradition of the Anglo-American common law, in which the common understanding of right and wrong have been codified over a millennium of reasoning and practice.
The principle of constitutionalism was invented on these shores. It was the first assertion of any standard for legitimacy other than divine right or force of arms. In exalting the law above the ruler -- indeed, in asserting that the rulers themselves are subject to the law, bound by it quite as much as any private citizen -- it first announced to the Old World that something new was going on here.
Constitutionalism doesn't sit alone in the void, giving birth to all our ideas. It is itself grounded in the postulate that government must have the consent of the governed, or at least an overwhelming majority thereof. At the time of the Founding, the "overwhelming majority" standard was set at three-fourths of the states. That was the requirement for ratification, and also the requirement for amendment.
It's worth reflecting on how little the Constitution would be worth if it were possible for Congress to amend it by a simple majority vote. That's the case in New York, whose state constitution is hardly worth the paper it's written on. Whenever the New York legislature wants to extend its powers, it simply votes itself new ones. This happens rather frequently. Yet even this smirk at the consent of the governed pays homage to the underlying rule: that government is bound by the document that expresses the people's consensus about its legitimate powers.
A government that seizes powers not granted by the people's consensus -- in the United States, a government that transgresses the bounds set by its constitution -- is an illegitimate government, that has no rightful claim on the obedience of its citizens.
Obviously, when practiced properly, without any "evolving document" evasions, constitutionalism is an enormously conservative idea. It puts a brake on rapid and wide-ranging changes in government and its authority. It requires the fulfillment of an elaborate set of procedures to approve expansions of power. It keeps the rulers intimately in touch with the people whose natural individual sovereignty they borrow.
This is not just a conservative, tradition-affirming idea; it is a powerful liberty-affirming idea. Any bounds on the powers of the State are libertarian in nature. They insist that the Republic must confine itself to the rei publicae, the public matters upon which legislation and exertion of political authority are appropriate. If the precise placement of the bounds changes, it will be gradually, and only with the express consent of the governed.
Opponents of constitutionalism, who dislike its conservative tendency, often raise the "slavery objection" to the original document: how, they ask, can you sanctify a document that allowed some men to own others? What they fail to see is that, though the Constitution as ratified permitted the obscenity of slavery -- ratification would not have been possible otherwise -- the principles behind the Constitution and enshrined in its provisions guaranteed slavery's eventual demise. To protect slavery for even a few years, Chief Justice Roger Taney had to claim in the Dred Scott decision that a Negro was not a human being, an entirely unsustainable position.
The chief problem with constitutionalism is the problem constitutionalism itself tries to solve: the problem of lawless government. At this time, more than 90% of federal activity and lawmaking is in violation both of the provisions of the Constitution and of the principles upon which it's based. The greatest obscenity is Congress's routine delegation of its lawmaking power to unelected regulators. This privilege was not granted to Congress in the Constitution, and for good reason: It puts the real lawmakers of the United States out of reach of the electorate, safe from removal.
This was made possible by citizen passivity. The enforcement agency of the Constitution is the citizenry; there is no other.
Libertarians and conservatives must find ways to reimpose Constitutional limits on the State, without interpretive legerdemain to accommodate particular interest groups, and without carving holes in the fundamental rights expressed by the Bill Of Rights that would allow governments to conduct campaigns against private practices some people dislike.
The alternatives to a properly framed, properly observed constitution and objective written laws consistent with it are anarchy and tyranny. Anarchy looks ever more attractive to a people who cannot restrain the State that rules over them. Tyranny, of course, always looks attractive to people who want power over others.
The United States is indeed in sore need of a Constitutional restoration. If I were President, I would pass an executive order (to fight fire with fire) establishing an agency whose sole job it were to find violations of the Constitution, other than itself, and stop them. FDA? Poof! BATF? Poof! FTC? Poof! NEA? Poof! Payments to the UN? Poof!
Anyone who tried to attack this agency as unconstitutional would find himself in a terrible catch-22...
It only took 150 years for Congress to decide that growing corn on you own land, to feed to your own hogs was interstate commerce that must be Federally controlled.
The limited government experiment has failed.
The Republic is dead.
Its time to try something else.
Well, its no longer a matter of voting for Socialists or Constitutionalists.
The Republicans will not run a conservative candidate.
Now its just a question of the flavor of Socialism: Do you want the State to subsidize steel or medicine?
Run someone like Keyes and the Libs will vote Republican.
I'm afraid you're right. I feel awful about it.
I voted mostly Libertarian and we ended
up with trade tariffs, agriwelfare, and a
concerted effort to deny states' rights.
Woe is I.
The problem with Libertarian and other 3rd parties is they don't appear to be able to win elections. By this I mean water commissioner, county board, school board...etc. Until they show that they can 1 win elections, and 2 govern they are doomed to be debating societies.
I didn't vote for Browne, I voted for Bush, then libertarian
on this rest of the ticket. You assume much.
At the rate Republicans are going, those holes keep appearing, and faster than you can patch them. The ship is sinking... at some point, you're better off in the water than going down with the ship. I wish, in your analogy, that there were enough people trying to patch the holes to make the effort worthwhile, but this baby is taking on water...
Which is the very reason not to abandon the Republican party. That Is my biggest problem with most conservatives. It is an all or nothing mentality."If I don't get everything I want I'm taking my toys and going home" There is no way to fix something if you aren't involved in the effort.
Then you admit that you are a liberal.
No, if you vote Libertarian you get no vote in the congress since they don't win.
Then you admit that you are a liberal.
What are you talking about? Any idea?