All Commentary
Saturday, September 1, 1956

Libertarians and the Constitution

Mr. Wolfe is a member of the staff of the Foundation for Economic Education.

Constituion Day
September 17

For over a century after its signing in September 1787, the United States Constitution was upheld by a citizenry which, by and large, appreciated it both in letter and spirit, and sought to live according to its ideal of limited government protecting individual rights.

But toward the end of the nineteenth century, and especially since the 1930′s, more and more Americans began to accept a theory of government—call it statism, collectivism, socialism, or what you will—in direct opposition to the individualist philosophy of our Founding Fathers. Unfortunately, many of those who held to the philosophy of freedom which underlies our national charter did not understand it well enough to competently defend the principles of Constitutional government.

Role of Libertarians

Who, then, remain—on this 169th anniversary of the Constitution—as the genuine upholders of “that magnificent document”? It would seem that the most able supporters might well be the libertarians—those rooted in a clear perception of the significance of the individual, his inclinations toward self-sufficiency and self-government, and his deep beliefs in the right to own and exchange the fruits of his labors without government intervention.

Thinkers who accept these ideas entertain views closely allied to those held by the strict constructionists among the Constitution framers. As much or more than any others, these libertarians understand the reasons for the restrictions on federal government imposed by our national charter.

Libertarian Holds Back

Yet it is a simple fact that rarely indeed does the libertarian rise up today as a stanch and vocal champion of the U.S. Constitution. Rather, this authentic liberal appears to have pushed the Constitution into the background of his mind. He is apt to mention it seldom, and even then with only mild endorsement. For almost a year now I have been asking myself: Why this neglect of Constitutional principles?

I have since concluded that the most incisive answer to the question lies in the conviction, apparently entertained by many able students, that libertarianism and Constitutionalism conflict—that there is essential opposition between the philosophy of freedom and our national charter, and that hence, one cannot consistently be both a libertarian and a Constitutionalist.

This is a view which I once held. It is a position which can be supported by an imposing array of argument, and I am quite aware that each libertarian must decide the issue for himself. But I now sincerely believe that the apparent clash between libertarianism and the Constitution is superficial rather than fundamental; that each has its necessary place, and is important—even indispensable—to the other.

Idea and Identification

Libertarianism is a philosophical idea or ideal; the original Constitution is its highest manifestation or identification as law ever experienced by a nation. This true liberalism acts as cause; our fundamental federal document appeared as effect. The philosophy of freedom might be termed an ideological discovery; our national charter is the legal means by which that discovery is founded or established in public life.

Thus the two—the libertarian philosophy and our Constitution as originally conceived and interpreted—can be viewed as an inseparable whole: cause and effect, idea and identity, a discovery and its founding.

One without the other is more or less ineffective and incomplete. The libertarian philosophy without its manifestation as law tends to appear as mere theorizing, while the Constitution, if it had not been preceded by the philosophy of freedom as conceived by the Founding Fathers and expressed in the Declaration of Independence, would have been as worthless as the charters of most other nations. By the same token, our Constitution today, since it is no longer sustained by a widespread libertarian understanding, is rapidly losing its practical value.

Objection Is Raised

“But,” a student of liberty says, “the U. S. Constitution never was a direct manifestation of the libertarian philosophy as I understand it. If my sense of libertarianism be termed cause, then the effect as law would be quite different from our federal Constitution. In particular, such a charter would place far more severe and specific limitations on the prerogatives of government—greater restrictions on its powers to tax and to spend; and outright elimination of its now-presumed mandates to transfer wealth, to subsidize, to regulate the economy, and to engage in a host of business activities.”

“Thus,” says the objector, “I cannot accept your explanation of libertarianism and the Constitution as cause and effect, or idea and its legal identification—if by that idea or cause you mean the libertarian philosophy as I see it.”

Interpretation and Amendment

On the surface this is a reasonable objection, but I believe it proceeds either from insufficient recognition of the extent to which the original Constitution did limit the federal government, or else from an inadequate appreciation of the actual (and desirable) flexibility of the Constitution, resulting from the combined influence of Constitutional interpretation and Constitutional amendments.

In 1787, when our national charter was created, it represented the highest degree of libertarian thinking that the people were willing to accept and live by. Since then, by amendment and interpretation, the Constitution could have moved either of two ways: toward even more limitations on government (and hence toward still greater individual freedom), or toward fewer restrictions on the political instrument. Of course we know that the movement has been in the latter direction.

Admittedly, the Constitution as currently amended and interpreted, expresses the libertarian ideal only to a minimum degree. It has been twisted and bent to serve the purposes of collectivism. But this is no accusation against the original document. Repeatedly it has been interpreted and amended in the wrong direction. But there is nothing whatsoever in the original charter which ever prevented it—or which now prevents it—from being interpreted and amended more and more in the libertarian direction, i.e., toward less governmental interference with individual affairs and economic actions.

Taxes and the Constitution

Let me briefly illustrate this important point in connection with just one crucial aspect of our national charter: its provisions concerning the federal government’s power to tax.

The original Constitution very severely curtailed the taxing power by laying down a concept of “uniform taxation” in which “direct taxes shall be apportioned among the several States . . . according to their respective numbers” (Article I, Section 2), not according to their ability to pay!

In the years since the framing of the Constitution, if the people had been ready for still more limited government revenue, there was nothing in the Constitution preventing an amendment in that direction.

Instead, the decay of libertarian understanding in America, and the gradual acceptance of federal paternalism (resulting in increased expenses) prompted a demand for a progressive, unlimited personal income tax, which appeared in 1913 as the Sixteenth Amendment. This, as the student of liberty knows, permitted vast strides away from limited government and toward collectivism.

Forsake the Constitution?

But just because our Constitution has been mutilated—in this and other instances—is that reason for the libertarian to abandon it? As a matter of principle, do we forsake anything of real value just because there has been an attempt (perhaps temporarily successful) to taint or tarnish it?

If we abandon whatever collectivism seeks to corrupt, we may finally have to forsake even communication itself, for collectivism persistently attempts to change the meaning of words (as for instance, the word “liberal”) altering definitions to suit its own purposes.

Just because the original Constitution does not limit the federal government as severely as we might like, (judging by our own ideals) is that reason to dismiss it, especially at a time when the original document is still much nearer the libertarian standard than is popular opinion?

In Constitutional provisions we can find a legal anchor to which we can tie our idealism. Once this country begins to live up to the governmental restrictions imposed by the Constitution, we can go on from there and seek still further limitations on the political instrument.

As libertarians, we always can—and should—state our own ideal sense of things, even when it disagrees with our national charter; but at the same time, would it not be well to understand and point out those ways in which the Constitution comes closer to the ideal than does the status quo?

In so doing, we would take ourselves out of the position that permits opponents to label one a “quaint idealist” or a “dreamy theorist” or a “mere philosopher”; and we bring to our lofty perceptions of freedom the virility of law and the realism of history. Thus we document the fact that libertarianism, to a remarkable degree, already has been embodied in the fundamental law of this land, as seen in a strict interpretation of the inspired charter completed on that long-ago autumn day—September 17, 1787.