How are constitutions adopted? Did the Founders get it right? What is originalism and why do constitutional interpretations matter when studying founding texts? By what standards do we judge a theory of constitutional interpretation to be correct?
Roger Pilon joins us this week for a discussion about originalism and the U.S. Constitution. This episode is continued in a followup episode about how the Constitution has been interpreted over the years.
Aaron Powell: Welcome to Free Thoughts from Libertarianism.org and the Cato Institute, I’m Aaron Powell.
Trevor Burrus: And I’m Trevor Burrus.
Aaron Powell: Joining us today is our colleague Roger Pilon, he’s the Vice President for Legal Affairs and founding director of the Center for Constitutional Studies at the Cato Institute. Welcome to Free Thoughts, Roger.
Roger Pilon: Thank you, good to be with you.
Aaron Powell: The First Amendment reads, in part, “Congress shall make no law abridging the freedom of speech.” So we’ve got those words written down, how do we know what they mean?
Roger Pilon: We look at the text as a start and if that settles the question we needn’t go any further, but if it doesn’t then you look at structural issues and finally you look at original understanding – that is to say what the founders had in mind or may have had in mind when they wrote those words. But fortunately in that case, the first amendment, we already know that this right, like all rights, is not absolute. So we know that we’re going to have to look behind the language itself to the structure of the Constitution and we’re going to have to place those words in the context of the larger Constitution.
For example, we know that you cannot use speech to for example shout fire falsely in a crowded theatre or endanger people or incite violence or defame another person. Where does that come from? It comes from the background theory of rights that stands behind the Constitution. And it’s only when you understand that that you can put the big picture together because the Constitution was written from the right of the people to do so. Therefore, in order to get clear about the Constitution itself, you’ve got to know about those rights of the people prior to the creation of the Constitution – which takes us to state of nature theory, which is the most important thing to understand if you’re going to understand the Constitution and interpret it correctly.
Aaron Powell: So if we have to interpret it through this framework of rights, or via this framework of rights then why bother with it and why not just work with the framework of rights?
Roger Pilon: Because the Constitution proceeds from that framework more specifically and then gives you a systematic account of what it is that the founding generation accomplished when they wrote and ratified the Constitution.
Aaron Powell: So what is the…as the theory of interpretation for what the words mean and now it’s interpreted as ‘congress shall make no law’. And of course now it includes states and state governments – things like that and freedom of speech, symbolic speech, what that means – things like that. But does originalism itself have normative weight in the sense that outside of the Lockean framework of the state of nature, that if we interpret the words to mean this and if it happens to mean something that is contrary to libertarian theory, it still has normative weight because it is in the Constitution.
Roger Pilon: Originalism takes its force from the background theory. The Constitution is of course a compact, among the people, with the government through the officers that they elect when they elect when they exercise the powers that they have through the franchise to bring those officers into the power that is given to them under the Constitution. But it all begins, as they say, with this state of nature theory, so perhaps I should take a few minutes to discuss that.
Trevor Burrus: Please, please.
Roger Pilon: Because if you don’t understand that, and today I regret to say most people don’t understand it, then you don’t understand the theory of legitimacy that stands behind the Constitution. Today, so many people think that a law is legitimate because a majority legislative body has passed it, and that of course ignores the fundamental problem of the tyranny of the majority and the rights of the minority. Moreover, it ignores entirely the larger framework within which majoritarian processes take place. So let’s go to state of nature theory; the whole idea behind that, whether it’s in Hobbs or Locke or other exemplars in the seventeenth and eighteenth centuries, was to create a state of affairs – or imagine a state of affairs – where there is no government because your ultimate aim is to show how a legitimate government with legitimate powers might arise. You can’t assume that in your argument because that would be circular, it would be begging the question. And so you start with a state of affairs in which individuals have rights and then you try to figure out what those rights are from principles of pure reason, taking that reason as far as it will carry you. And that will show you what rights that people have and do not have when they come out of that state of nature and create government. What rights they have to give to government in the form of powers and what powers they may not give to government because they have no such rights to begin with.
So you start dealing with a state of nature where you are dealing essentially with adult, rational, able-bodied people. And why do I narrow it down to that? it’s because you want to get rid of the difficult cases, you want in ethics with the easiest cases, not with life boat cases because there is where all the problems and the compromises, the difficulties, come up. You start with the easy cases and try to figure out what’s wrong with murder, rape and robbery – why is it that we’ve got rights against that? Well it turns out that you do because essentially your basic right is the right to be free, and that is reducible – as Locke said – to property, by which he meant lives, liberties and estates, by which I mean property. That is an exact quote from paragraph 123 in the second treatise. And so when you reduce all rights to property you see that right violation is the taking of something that belongs free and clear to another. We’re not talking about harming people, you can harm people in many ways; you can for example insult them, you can say something that leaves them uncomfortable. That doesn’t amount to a right violation; a right violation is the taking of something that belongs free and clear to another. And once you get clear about that, then you have to discern what it is that does belong free and clear to another. And indeed I can give you a couple of examples of how that plays out.
If I for example own a mom and pop grocery store and you decide to build a supermarket across from me, then you will be probably be able to buy and sell more cheaply than I can and even drive me out of business. But you haven’t taken anything that belongs free and clear to me because I owned my business, I owned the shop, the customers are free to come to me or to where the prices are cheaper and this is exactly what they do and so that doesn’t violate my rights. Here’s another example, suppose I have a home with a lovely view of the bay but between my home and the bay stands your home and you decide to build a second story on your home. And there goes my view and indeed some of the value on the property, maybe the property was worth $200,000 and now it’s worth $150,000. Haven’t you, by building that second story on your home, literally taken $50,000 from me of market value that I had in my home? No, because you didn’t take anything that belonged free and clear to me. I didn’t the view, the view ran over your property. I could have made that view mine, I could have gone to you and offered to buy the view in the form of buying an easement over your property so you wouldn’t build over it and therefore make that view mine – that’s the way you do it the legitimate way. And so we come to the second great font of rights beyond property, namely; the rights of contract. There are two morally relevant ways in which people can come together; either voluntarily or by force. By force by committing torts, that is, accidents, or by committing crimes against another – an intentional tort – not statutory crime here.
And so we now have the building blocks for the theory of rights; we’ve got property on the one hand, between common law strangers, and we’ve got contracts. And through the events that I just mentioned, namely contracts or torts and crimes, we change the world of rights and obligations. And so we extinguish or alienate all rights and obligations and bring into being new rights and obligations through the simple events that happen between ordinary individuals. And so we want to think of rights as relationships between people – right holders and obligation holders. There are general relationships; that is to say that the rights and obligations between strangers, all of which are reducible to essentially being free – being left alone – what you can’t do is take from another person. And therefore, all of those general rights and obligations are negative. We speak of general rights; strictly speaking, we should be speaking of general obligations because those are negatives – not doings. And that defines the whole world of general rights and general obligations.
Trevor Burrus: And so this backdrop, this creates…this goes into the legitimacy of the Constitution having political power and that’s why interpreting it with originalism is…
Roger Pilon: It’s too early for that question.
Trevor Burrus: I know but it’s tied to political legitimacy.
Roger Pilon: So now when you move to special relationships, special because they pertain only to the parties – to the event – that brought them into being. Either the contracting parties or the tort visa or the victim, the criminal and the victim. And those are the people who have the special rights and obligations vis a vie each other. And of course those can be either positive or negative; if I injure you by driving my car into you then I’m obligated to make you whole again, for example. If I commit a crime I injure you intentionally, not only am I required to make you whole again but you’ve got a right to punish me to make good on the insult to me to the insult to you that my crime amounted to, abusing you as I did by committing that crime. So there we have our two basic rights; property and contract. Now with those we can explain a vast range of institutions; everything from spot transactions to voluntary associations, religious organizations, charities, small businesses, giant corporations and so on and so forth.
But eventually we’re going to run out of principles, reason will take us a long way down the road, we don’t have to turn to values but eventually we are going to have to turn to values. And there are four classic areas in which that is the case: nuisance, risk and endangerment, remedies and enforcement. How much noise can I make before my right to the active use of property interferes or takes your right to the quite enjoyment of your property? How much noise, particulate matter can I waft into the air – odors, vibrations and so forth? How much risk can I put you to? Obviously if you’re risk averse you’re going to say ‘very little’, if on the other hand I’m a risk taker, I’m going to say I can put you through a lot of risk. There is no difference, in principle, between the two of us when we’re talking about these nuisances I just mentioned or we’re talking about risk, it’s a matter of degree. And the fact is we’re not going to agree on it because you’re risk averse – I am a risk taker – and so forth. And so we’re going to have to turn to a third party to adjudicate this if we can’t agree, otherwise we go to war. Remedies; if I injure you, what is a life or a limb worth? You’re going to value it as the victim – high; I am going to value it low. Same thing here, we’re going to have to turn to a third party.
And then when we get to enforcement; in a state of nature, let’s say I come home, I see my cow is missing and I’m thinking, “The fence looks perfectly intact; obviously while I was away someone came and took my cow.” And so am I now entitled to stop everyone I run into on the highway and pull out the thumb screw, put them on the rack to see if they’re the ones who stole my cow? In other words, what process is due under a circumstance like that? Obviously, as the victim of that loss, I may be inclined to exceed what I am properly entitled to do to find out who the thief was. As a possible thief, or maybe not, you are going to demand that I follow certain procedures to rectify the wrong that has happened to me. Here again you’re going to need to turn to third parties and so we’ve got here certain natural spring boards to the state. Starting in a state of nature, we’ve run out of principles of reason, we’ve reached the point that reasonable people can have reasonable differences about what should be done by way of fleshing out more fully this theory of rights. And so it behooves us to come out of the state of nature into the state of civil society to work this out, and that’s what a Constitution is all about. We are moving out of the state of nature by right in the sense that we are appealing to our fellow man, “Look, we’ve both got these same problems here.” One day we could be the tortfeasor; the next day we could be the victim. We could disagree about the terms of a contract we’ve reached – you can’t spell out every point in a contract and so on and so forth.
And so it behooves us to do that and so now we have discovered that there are legitimate grounds for coming out of the state of nature and creating some public rules that we can, at least in principle, all agree to, put them in a constitution such that we can order our affairs thereafter through public law, whereas before we were in an essentially private law world.
Aaron Powell: So I guess two questions about that story; the first going back to Trevor’s question about the independent normative weight of originalism of the Constitution is that it seems like then the political authority of the Constitution and the reason we are to approach it from the originalist standpoint is contingent upon first accepting a state of nature/social contract model of the state of justice of political legitimacy which is, even among people who have dedicated their lives to studying these questions, is some are controversial. There are competing , well fleshed out and argued for alternative conceptions of these things which would seem to at least complicate the ‘you ought to follow the Constitution in this way and you ought to obey this thing for the following reasons, if you don’t you have to have this prior set of relatively controversial political philosophy views.
And the second one is this would appear to get us to a constitution or a state that then protects the facilitation of these rights or these rights themselves, facilitates it, but not necessarily to the specific one that we have because there’s a lot of stuff in the Constitution that is not necessarily tied to this story. You know the way that the government structures are set up could be different and respect the rights just as well.
Trevor Burrus: The tonnage clause, I don’t see that coming…
Aaron Powell: And also it would seem if the theory of rites is prior to the state then then does this mean we have a duty to disobey or override when following this thing or when the government that it substantiated would cut against those rights? So is our duty to rights maximization as opposed to say obedience to a state created by a constitution?
Roger Pilon: Well with the exception of that final point that you made which we can address as time goes on, the prior points that you raised – as luck would have it – are addressed by the Declaration of Independence and the preamble to the Constitution. The state of affairs that I just sketched out is summarized in the first part of the second paragraph of the declaration. “We hold these truths to be self-evident.” What are self-evident truths? They are truths that are rooted in reason; that all men are created equal, they are endowed by the creator with certain inalienable rights and among these are the pursuit of life, liberty and happiness. Stop there, there is your moral order, Jefferson hasn’t said a thing yet about the political and legal order. The moral order I sketched out more fully, but there it is in very summary fashion.
The idea of all men are created equal is an invocation of Occam’s razor or a rule of parsimony, the implication is that if someone wants to claim rights that are more superior or more extensive than someone else, the burden is upon him to do so. The simpler premise is that we all start with equal rights so that’s the beginning. Then you spell those rights out as life, liberty and the pursuit of happiness. Notice the pursuit of happiness, there you have an implicit distinction between rights and values - what makes you happy is not necessarily what makes me happy; you like chocolate, I like vanilla, you like to smoke, I don’t like to smoke. And we could go on and on, as the economists are fond of reminding us; there’s no accounting for tastes.
There is subjectivity in values but objectivity in rights and it’s important to draw that distinction because it helps us to chart a course between two epistemological schools of thought that go all the way back to antiquity; between skeptics on the one hand and dogmatists on the other. The skeptics held that there are no moral truths or if there are we can’t know them. The dogmatists held that there are moral truths relating to every aspect of the human condition; what you can put into your body, what sexual practices you can engage in, what the rules of women should be in society – think of some of the draconian codes in various parts of the world today.
The trouble with these two schools is this: skepticism gives you no morality, nothing to get hold of, dogmatism gives you no liberty. So if you can chart a course between these two unattractive schools you will have objectivity with respect to rights and subjectivity with respect to values. With respect to the rights, rooted in reason, which I would trace the argument in another lecture to its fundamental roots which show that we all must agree about the truth and falsity of certain right claims – basically about liberty, the kind that I have just sketched out. You have objectivity and rights, subjectivity and values, such that the conclusion that flows from that distinction is that each of us has an objective right to pursue happiness by his own subjective values, provided he respect the equal right of others to do the same. And then, when we get to the next part of the declaration, the purpose of the government is to secure those rights and a few other things they have authorized it to do.
Now let’s turn to that next part. Jefferson says that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. So notice, first of all, government is twice limited; by its means which must be consented to and by its ends which are to secure its rights. And so you have the two grounds that you were speaking about earlier Aaron; you have consent on one hand and you have reason on the other. The idea is that we all consent in the original position to these rights which are grounded in reason. And if we have rights that are not grounded in reason, that are indeed illegitimate, then we have consented to something that we have no authority to do.
But now let me address the consent problem, which is what I think you were alluding to mainly. It is a very real problem; indeed – at the end of the day – the anarchist carries the day as a matter of pure reason. There is nothing you can say…
Aaron Powell: That is our quote for this conversation: “The anarchist carries the day.”
Roger Pilon: I am not an anarchist; let me be clear about that, I am a classical liberal. I am not an anarcho-capitalist but we have to grant that the hold out, the person who says, “I think you’ve got a pretty good justice system here, good police force, good courts and so forth – but frankly I would rather do it myself, I think I can do it even better and cheaper.” What could you say to this person? When you force him out of the state of nature you are forcing him and so what this leads us to is a very important insight about power.
I am going to distinguish three kinds of power: The first great power that government has is the executive power, as Locke called it, in the state of nature – the power to secure our rights, which each of us has. When we come out of the state of nature and into the state of civil society that is the first and the main power that we yield up to government and the only person who could be heard to complain about that is this hold out who would say, “I would rather do it myself.” And this is the guy that you’re going to tell, “Look, we’re going to force you to come into our state of affairs or leave.” Let me hold off on the second and third powers for just a minute because I’m going to go to the issue of consent right now because it’s on the table.
The classical theory from Locke onward, through social contract, has this problem at its core. Obviously, if you have unanimity you can overcome the problem, but rarely – if ever – do you have unanimity. And the classical theorists understood that, which is why they went to the social contract, to the two step theory of consent. We all agree, in the original position, to be bound thereafter by the majority or some other fraction of the whole. The problem with that is that it doesn’t answer the question, now that the majority stands in the place of the king and the minority stands in the place of the people, the minority by definition did not consent. And the classical theorists realized that and they came up with the theory of tacit consent; you stayed therefore you’re bound. Well that’s not going to work either because it’s tantamount to the majority telling the minority, “Either leave or come under our rule”, precisely what the majority has to justify on pain of circularity.
Aaron Powell: In addition to the fact that currently you have to pay $4,700 to renounce your citizenship, for example to add insult to injury.
Roger Pilon: And so essentially the majority in this last state of tacit consent is in the same position as the mugger – your money of your life right? And you say, “Wait a minute I’ve got a right to both my money and my life.” “Well I’m not going to allow you a right to both, take your choice, your money or your life?” The majority are saying, “Take your choice, either leave or come under our rule.” And so that is the sense in which this hold-out, even with respect this basic right to enforce, is problematic for the issue of political legitimacy. But we overcome that simply by force and George Washington was right; government is it not reason, it is not eloquence, it is force. It is a forced association and we need to admit that. Why?
Because once you recognize the character of government and then you it will behoove you to do as little as possible through government and as much as possible in the private sector where it can be done in violation of the rights of no one. That is a crucial point for libertarians to notice, namely that there is something to be said for the anarchist, namely that from a pure point of view he’s right. But I daresay none of us, except some anarchists in the libertarian party, would want to live in state of nature where Hobbs was absolutely right; life is solitary, poor, nasty, brutish and short. Look today to places where law and order break down, ask yourself, would you want to live in such lawless worlds? I daresay most of us would prefer to stay in the good old USA.
Aaron Powell: Does this mean then that our Constitution, the one written down by the framers in the eighteenth century, matches that theory perfectly which would seem unlikely?
Roger Pilon: No, now we come to the real world and to the question that you raised earlier Aaron. And I’ll rephrase the question this way; did the founders get it right? And it’s very it’s very important to answer that question because not all founders got it right. The founder who wrote the 1877 Constitution or the Cuban constitution got it very wrong from the consideration of moral rights and obligations. Fortunately our founders, for the most part, got it right when they gave us a limited government. Oh there were some real problems to be sure, starting with slavery and its oblique recognition of slavery, but in the main they got it right. And here we come now to these three kinds of powers that I left dangling a few minutes ago.
As I said the first great power is the executive power, the police power that each of us enjoys in the state of nature which we yield up to government to exercise on our behalf to draw the lines where one person’s right ends and the other’s begins in such areas as nuisance, risk, remedies and enforcement. I mean the fourth amendment uses the word “unreasonable” search and seizure, probable cause – those are value words, those are not deontological rights words, those are values words. Different people will draw the line at different places, it’s no accident so many fourth amendment cases go to the court because they are very fact dependent and where you draw the line will turn on those facts.
Now the second great power of government is the imminent domain power – the power that is called the despotic power in the seventh century – why? Because none of us would have that power in the state of nature, so what justifies it? Well there are only two grounds you can point to to make the best case that can be made for it. Number one; we did agree in the original position, or at least those who were in the original position, did agree to give it to government in the form of the Fifth Amendment’s takings clause. And secondly; it is Pareto superior, as economists say, at least one person is made better off by its exercise and no one is made worse off as is evidenced by the fact that the people made better off are willing to pay just compensation and the person not made worse off is the person who received just compensation. Unfortunately in the real world, under the law as it exists today, you receive market value if you’re lucky and market value is not just compensation. The evidence for that is that if it were you’d have your property on the market, the fact that you don’t indicates that it’s more valuable to you in your hands than what it would fetch on the market.
And so that’s the second great power and that’s the best we can do by justifying that. And it’s an instrumental power that the government has to address such problems as the hold out when assembling parcels of land for such things as cables, sewers, telephone/telegraph lines, railroads and so on and so forth. The third great power is the redistributive and this has two forms; there’s first of all the material redistributive power and secondly the regulatory redistributive power. The material redistributive power is that power that congress exercises through the power to tax and obviously the fairest form of that would be a head tax where everybody is treated equally. The next would be a consumption tax, maybe one that is graded according to one’s ability to pay. That treats people very unequally but then when you get to the tax code that we have today then we are so far into unfairness that one wonders why we aren’t able to do anything about it.
The regulatory redistributive power – here we have to be very careful to distinguish those regulations which are necessary and proper for fleshing out theory of rights such as those that will define where rights end, the definition of speed zones in certain contexts – assuming you’re going to have public roads and so forth – there too you are going to have regulations that flesh out our rights. What is it that trucks can do to ensure safety? We have these beepers when trucks back up, we have these on large trucks, we don’t have them on pick-up trucks, why? Because we’ve drawn the line that it’s more dangerous when you’re backing up an 18 wheeler than it is when you’re backing up a pick-up truck. And so these are the kinds of lines that are drawn.
Now those are the kinds of regulations that are perfectly legitimate to flesh out the theory of rights, the redistributive regulation is quite another matter. That is the world of regulations whereby one individual is required to do something that he otherwise would not have to do or prohibited from doing something that he would otherwise have a right to do for the benefit of another individual. And that is what burdens us everywhere today, the kind of redistributive regulation.
So those are three basic powers of government that will flow from the theory of rights that I just set out. And it will help to sort out legitimate from illegitimate powers of government to see which of these categories these various powers fall into.
Trevor Burrus: But should we do that when we look at the Constitution itself? For example should we analyze say the commerce clause differently than something like letters of mark and reprisal or the post roads clause? We could do post offices, we could have people go on private roads, this is all possible. Or something like the duty of tonnage; I mean should each one be interpreted differently? And some of them were like, “This is not exactly a Lockean state of nature provision of the Constitution so it should be interpreted differently than something that is.”
Roger Pilon: Okay Trevor you raised the commerce clause and I’m glad you did because this is a good example of the kind of regulation that sometimes can be justified and other times cannot. As you know the commerce clause was written in the context of the articles of confederation under which states had erected tariffs and other protectionist measures for the benefit of local merchants and manufactures to protect them from competition from out of state concerns and it was leading to the breakdown of the free flow of goods and services among the states.
So when they met in Philadelphia in 1787, the framers gave congress the power to regulate or make regular commerce among the states. And insofar as that is the use that congress puts it to, as in the first grade clause commerce case Gibbons v Ogden in 1824, then it’s a perfectly legitimate use because it negates state interference with free commerce.
Trevor Burrus: What was Gibbons about?
Roger Pilon: It was about a challenge to a monopoly grant from the state of New York to ply the fairy trade from New York to New Jersey which of course kept other concerns from entering the market and, to that extent, frustrated free commerce. And so the court found it to be unconstitutional because it was a usurpation of power that belonged to the federal government. You can also have the commerce clause used legitimately in the areas that I pointed out before – line drawing context for example. Takes trucks again; if we had 50 different truck safety regulations then every time a truck went from Ohio to California and through many different jurisdictions it may have to change its load, change this or that, it would be an absolute nightmare and it would raise the cost for everybody. So what you have is use of the commerce clause to ensure the free flow of goods and services among the states.
And we see this in other areas too, take pharmaceuticals labeling; labeling is a proper function of government insofar as it may be necessary and that no private concern could do that labeling for example. Assume for purposes the argument that it is the government that’s doing that, well if you have fifty different states requiring fifty different labels it makes it very difficult for a national concern, more costly both for the concern and for the public to have that kind of a regime as opposed to having a central run regime. Now the downside is if the central regime engages in onerous regulation, over regulation or under regulation as the case may be. Then you haven’t protected rights on either side of that equation and so that has to be focused upon too and here we get into issues like preemption and so on and so forth.
There’s one other thing that I wanted to…
Trevor Burrus: Other parts of the Constitution like I say are things that are not commerce but more, like I said, not part of the Lockean state of nature discussion – powers that were given to the federal government that maybe were illegitimate at the beginning or maybe were not part of that.
Roger Pilon: You pointed to one in fact – the post office. The post office was a very important institution it turns out, early in our history at least, they found it was. But I am going to talk about the post office in the context of the monopoly grant which once was for all, not only first class, but packages and so forth. And I am going to do that in context of the necessary and proper clause. Just by way of background, for those non-constitutionalists listening to this, the Constitution at its core has something called the doctrine of illuminated powers whereby congress is given only certain powers, the rest belonging to the states or the people, never having been given to either level of government.
Among those powers is the power to create a post office, not among those powers is the power to give it a monopoly grant. That was arguably derived from the last of congress’ illuminated powers – the necessary and proper clause – which affords congress the power to execute the other enumerated powers or pursue the other enumerated ends by laws that are necessary and proper for that end. In other words the 18th power is an instrumental power giving congress the means to carry out its other ends. The problem in this case is that the monopoly grant is neither necessary nor proper. It’s not necessary because you can have private delivery of mail and packages, indeed before the monopoly was removed for packages we had a monopoly for packages that has been supplanted by UPS, FEDX and so forth. Nor is it proper because it stands in the way of private right to deliver mail and packages. And so the monopoly grant for the post office fails on both of those counts.
But at some point in this discussion I should step back and show how it is that by and large the Constitution does reflect the theory of rights that I set forth earlier on, so would you like me to address that now?
Trevor Burrus: Please yes.
Roger Pilon: Okay. We start with the preamble, first of all the picture that emerged from the declaration was one, as I said earlier, in which individuals are free to pursue happiness as they think best, by their own subjective values as they work their way through life provided they respect the rights of others to do the same. And we create government, as the declaration says, to secure those rights and, as the Constitution makes clear, to pursue those few other things that we have authorized congress to do.
You look to the preamble and you see that it put us right back in state of nature theory just as the declaration did in that first part before it turns to government. “We the people, for the purposes listed do ordain and establish this Constitution.” In other words all power starts with the people; they create the government, they give it whatever powers it has. The government does not give the people their rights, they already have their rights – their natural rights – the exercise of which brings the government into being. So the people create and empower the government.
The problem Madison had when he thought about how to construct the government, the federal government, was how to do so in a way that enabled it enough power to secure our rights and to do the few other things that we wanted it to do but was not so extensive or powerful enough to violate rights in the process. And he did that through the checks and the balances that we’re all familiar with. He started for example with the division of powers between the federal and state governments with most power left for the states. The separation of power is between the three branches, each branch defined functionally. The provision for a bicameral legislature with each house constituted differently, the provision for a unitary executive with the subordinate offices reportable to and under the direction of the president himself or herself. The provision for veto on the part of the executive and the provision for congress to override it by a supermajority, the provision for an independent judiciary – a novel institution at that point it time, to check the political branches and later on the states to make sure that they are conforming to the strictures set forth in the Constitution. The provision for periodic elections, mainly not to change the course of government, but to fill the offices set forth in the document because the course of government and the limits of it are set forth already in the government. And finally, the most important restraint of all took the name of “the doctrine of enumerated powers,” which I mentioned a moment ago. And I can state it no more simply than this: if you want to power don’t give it in the first place.
And you see the doctrine of enumerated powers in the very first sentence of article one section one: All legislative power herein granted shall be legislated in a congress. By implication, not all power was herein granted. Again, you look at article one, section eight and you will see the congress has only eighty enumerated legislative powers. And then you look at the tenth amendment, the last documentary evidence in the founding period, and you see this doctrine spelled out expressly: The powers are not delegated to the United States by the Constitution nor prohibited to it by the states are reserved to the states respectively or to the people. In other words the Constitution establishes a government of delegated, enumerated and thus limited powers.
And then you look at the ninth amendment and you see the obverse of the tenth, the ninth speaks of rights whereas the tenth spoke of powers. The ninth reads: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage those retained by other people. Notice, retained by the people, you cannot retain what you don’t first have to be retained. Obviously that amendment was referring to the natural rights that we never gave up when we left the state of nature and entered into civil society. You see why it’s so important to understand state of nature theory, that gives you your theory of legitimacy such as it does and it explains the relationship in powers in the tenth amendment and rights in the ninth amendment. Indeed it recapitulates the founding principles set forth in the declaration and that’s why the ninth and tenth amendments are so important, they bring us back to the founding principles.
Trevor Burrus: Sometimes when I discuss this then people often joke that the Constitution needs a “and we really mean it clause” and I often say it actually does, it’s called the ninth and tenth amendment. That’s what it is; it just restates everything that came before in shorter and prettier language. But I want to push back a little bit because you said that within this here you would authorize things like interstate trucking regulations or labeling regulations – things like this. And we started to see some agencies emerge that do these kinds of things but of course they aren’t very well constrained in their powers. Not just the agencies, even that power, it’s not clear – to draw that line – what actually is an interstate commerce regulation, it becomes a difficult line drawing endeavor and it might become something where you consume the liberty of the people because that line isn’t draw by the government itself. Which is of course what the anti-federalists said, “We do want to sit here and agree with you, we do want to protect these rights but you have created a government that we foresee, especially through the necessary and proper clause, will consume the freedoms of the people because they will not be able to constrain itself to the proper rule of government.
I have been reading the more obscure anti-federalist papers recently and yes they are amazingly prophetic in many ways about how these could be used against people. So in that regard they were correct and so would you have signed the Constitution if you were sitting there? Would you have hoped to foresee that the government wouldn’t be able to constrain itself even though it’s set up in such a way you had powers that could not be constrained by itself?
Roger Pilon: Well we had a pretty good run for a 150 years.
Trevor Burrus: We did but maybe one reason for that is we had the slavery issue where they didn’t really do broad nationwide legislation because it was hard to do that. And then we had the war and the post war period and as soon as we our head out the sand and we were in the gilded age and they start coming in and it takes only fifty years to the new deal so it’s pretty much gone.
Roger Pilon: Yes and yet during that first 150 years, or at least that first 100 years until we get to the progressive era, there was spirited debate in the political branches about the Constitution. Madison, in 1794, faced a welfare bill in congress – a bill to provide relief from refugees fleeing from San Domingo to Philadelphia and Baltimore. He rose to say, “I cannot undertake to lay my finger on that passage of the Constitution that authorizes us to spend the money – the tax payer’s – to spend the money on this humanitarian activity.” That’s a paraphrase, roughly, of what he said on the floor of the house. That’s a mark of how seriously, early on, they took the Constitution. Two years later Giles, his colleague from Virginia, made a similar point for a bill was passed for relief for people who had suffered from a fire in Charleston, South Carolina.
Aaron Powell: “Our duty is to uphold the Constitution and the oath we took to do so”, he said.
Roger Pilon: We see these debates as late as 1877, a century later, president Cleveland vetoes a bill appropriating $10,000 – Imagine, $10,000.
Trevor Burrus: In 1887.
Roger Pilon: Yes, for the relief of farmers suffering from a drought in Texas. He said, “I can find no authorization for this expenditure under the Constitution.” When was the last time you heard anybody in Congress or in the White House make a statement of that kind?
Trevor Burrus: What about Ron Paul?
Roger Pilon: Yes, but my point is that the Constitution is parchment – as is often said – and it is not self-executing. Eventually you’re going to have to have people who take it seriously and take their oath of office seriously and do so in fact. And when the moral character of our members of congress breaks down then we’re in serious trouble.
Aaron Powell: Thank you for listening. If you enjoyed today’s show, please take a moment to rate us on iTunes. Free Thoughts is produced by Evan Banks and Mark McDaniel, to learn more, find us on the web at www.Libertarianism.org.