Limits? What Limits?

In the comments to Jason’s post yesterday afternoon defending the act of reading the Constitution on the House floor to open the legislative session, even though Jason acknowledged it as being an empty act of political theater, LarryM writes:

What’s the positive symbolic value, anyway? …Does anyone think that we’re REALLY going to get there by a better understanding of the limits of constitutional government?…

Let me expand upon this a bit. Three points:

(1) In the abstract, the only way to have a small government nation over a long period of time is to have a populace who believes in small government. A narrow constitution is secondary to this goal, not primary – i.e., it can prevent the passions of the moment from expanding government, and it can reduce the ratchet effect of such expansions becoming precedents for further action. But no constitution, in the long run, can prevent the majority from imposing their will – if that will is for big government, ultimately that will prevail.

(2) In the contemporary U.S., constitutionalism is, on a purely PRACTICAL basis, not a serious adjunct to smaller government. You have to convince the people. …

(3) Parenthetically… reading the constitution as a libertarian document is a mistake. Read textually, it provides a more cirumscribed role for government, and likely the founders would be surprised at the size and extent of 21st century government. But the libertarian position was the articles of confederation.

Up until a few weeks ago, I would have found much of this view deeply wrong.  But the recent debate over whether any restrictions on government power remain if the individual mandate is constitutional (and the related debate over whether liberals believe there should be any limits on government power) has changed my mind, and I think the view espoused by LarryM above is almost exactly right.

Constitutions are important safeguards which can and should act as a brake on the expansion of government power, but by and large they are not very good (and are really not intended to be very good) tools for providing permanent limits on government power except to the extent those limits are highly explicit (e.g., the Bill of Rights).  There typically is no great philosophy about the role of government underlying constitutions themselves, including the US Constitution, since they are ultimately the products of compromises amongst interests that exist at a given point in time.

In the context of the US Constitution, I’m quite certain that many, and almost certainly most, of its drafters and supporters would have found the notion that most of the modern federal government is constitutional absurd.  But can we say that all of them would have thought so?  I don’t think we can.  In fact, I think we have to recognize the possibility that some number of drafters and/or supporters supported the document precisely because they interpreted it as providing room for an extraordinarily expansive view of government power.  Meanwhile, we should also recognize that the great fear of the opponents of the Constitution, the anti-Federalists, was precisely that they interpreted it as providing an almost absolute grant of power to the federal government – read, for instance, thes righteous rants against the (pre-Bill of Rights) Constitution’s lack of limits on power from one Patrick Henry, the latter of which concludes:

We are giving power; they are getting power; judge, then, on which side the implication will be used! When we once put it in their option to assume constructive power, danger will follow. Trial by jury, and liberty of the press, are also on this foundation of implication. If they encroach on these rights, and you give your implication for a plea, you are cast; for they will be justified by the last part of it, which gives them full power “to make all laws which shall be necessary and proper to carry their power into execution.” Implication is dangerous, because it is unbounded: if it be admitted at all, and no limits be prescribed, it admits of the utmost extension. They say that every thing that is not given is retained. The reverse of the proposition is true by implication. They do not carry their implication so far when they speak of the {150} general welfare — no implication when the sweeping clause comes. Implication is only necessary when the existence of privileges is in dispute. The existence of powers is sufficiently established. If we trust our dearest rights to implication, we shall be in a very unhappy situation.

So if in 1789 you told someone that 220 years later the Constitution would be deemed to permit Congress to require people purchase a particular product from a private party, you could have gotten a number of different responses depending on who you asked, ranging from surprise to satisfaction to Patrick Henry’s assuredly self-righteous “I Told Ya So” anger.

So whose interpretation was correct, especially given the narrow margin by which the Constitution came into being?  The views of a majority of its supporters?  The views of the minority of its supporters whose support was nonetheless necessary to secure its passage?  Or the views of the anti-Federalists?

The answer is that they’re all potentially right.  The Constitution, again, was a compromise, and the nature of compromises is that you will often punt on things where you can’t come to agreement, but which are not relevant to immediate circumstances.  Do we have any reason to believe that “necessary and proper” to “provide for the General Welfare” was any more universally understood than it is now?  Sure, it may have been less debated, but that does not mean it was less debatable; it is at least equally plausible that it was less debated only because it was not a pressing issue in creating a more functional government at the time.

While we libertarians tend to think of the Constitution as an essentially libertarian document, and that liberals have no respect for that fact, LarryM is exactly right: reading the Constitution as a libertarian document is a mistake.  Indeed, the intellectual forbears of libertarianism are not to be found amongst the proponents of the Constitution, but amongst the anti-Federalists, most prominent of whom was the aforementioned Patrick Henry.  And those intellectual forbears are precisely the group who would have been least surprised that the Constitution permits Congress to require individuals to purchase a private product for no reason other than being alive.

So what is the purpose of the Constitution and of constitutions in general in the wake of the individual mandate?  The same as it always was: to provide a framework within which a republic can evolve, and in which power rests in the hands of a given electorate.  The Constitution tells us how we determine that electorate, and it tells us to a large extent how we divide the categories of power between the branches of the federal government, and who can be part of those branches.  The Bill of Rights and some of the amendments tell us explicitly what government cannot do without jeopardizing its legitimacy as embodying the will of the electorate and the people.  And the 14th Amendment tells us who must, at a minimum, be deemed a citizen entitled to the full privileges and protections granted all Americans.

It does not tell us how broadly or narrowly to interpret phrases like “necessary and proper,” “general welfare,” and “among the several States.”

None of this is to say that everything that is potentially Constitutional is within the proper purview of government as I view that role; to the contrary, most that is potentially Constitutional is not within my definition of the proper purview of government, and my preferred interpretation of the Constitution is probably closest to a Madisonian view that would have rendered the Constitution more libertarian than any other view at the time.  But I think ultimately libertarians have to accept that our preferred understanding of the Constitution has no more evidence in its support than liberals’ preferred interpretations.  We are left to turn to the populace, as expressed through the legislative branch, to resolve the dispute, with a little help perhaps from the judiciary as a means of making sure that neither interpretation becomes so dominant as to radically alter the status quo at a given moment in time.

Where libertarians can proudly point and demand that their interpretation be given credence is the Bill of Rights and the post-Civil War amendments.  These were not compromise documents, but were instead explicitly intended as a sop to the anti-Federalists of whom libertarians are the undisputed successors, or as a means of ensuring that the state and local governments were never again complicit in the repression of libertarian rights.

As such, those amendments do not embody the language of compromise, but instead embody the language of absolutes and specifics: “shall make no law;” “the right of the people to keep and bear arms, shall not be infringed“; “the right of the people to be secure . . . against unreasonable searches and seizures shall not be violated” except under very specific circumstances; “no person shall be held to answer for a capital or otherwise infamous crime” unless very specific criteria are met; “in all criminal prosecutions” the accused must be guaranteed certain very specific rights.  And so on.  Even the amendments that are ambiguous are ambiguous in a way that permitted libertarians and anti-Federalists to insist that certain powers of the federal government that were well-established at the time be Constitutionally limited at some point in the future: “excessive bail”; “cruel and unusual punishment;” “enumeration of certain rights . . . shall not be construed to deny or disparage other rights retained by the people”; “powers not delegated . . . are reserved to the States, respectively, or to the People.”

Those amendments and documents are where libertarians should focus their Constitutional interpretation efforts, because those are the documents which we can most rightfully claim as our own.   They also happen to be documents that liberals, with some very notable exceptions, wish to interpret in the same manner as do libertarians.  This is especially true of the 14th Amendment, which liberals can claim as being even more within their intellectual heritage than libertarians.  But it is also true of the Bill of Rights, similar versions of which were pushed proudly in the 1848 European revolutions, the leaders of which often migrated to the United States and came to play a significant role in the development of modern American liberalism.