There’s no shortcut to a free society. I find myself repeating this because looking for shortcuts is tempting, and thinking is easily overtaken by wishful thinking.
A shortcut favored by most advocates of limited government is restoration of the Constitution. If only we could get back to the Constitution as it was written, people say. It’s a sincere wish, but as a path to a free society, it’s riddled with potholes. Not that I don’t want the Constitution interpreted in the most restrictive way in order to prevent violations of liberty. Of course I do. The problem is how we can get there from here. Many advocates of liberty have thought they just had to appeal to the “original meaning” of the Constitution and things would more or less take care of themselves. But if that were so, why are we in the mess we’re in now? I presume that earlier generations interpreted the Constitution in a way more to the liking of today’s constitutionalists. What happened? Since that time, the Constitution has never been suspended; the government wasn’t replaced by a non-constitutional regime. The formal Constitution has been in force continuously since 1789. Everything that happened was justified constitutionally.
So Lysander Spooner was right: the Constitution has either authorized such a government as we have had, or has been powerless to prevent it. The “parchment barrier” against power (James Madison’s term for the Bill of Rights) wasn’t much of a barrier.
This suggests that understanding the Constitution — and constitutional government itself — is not the straightforward project it’s made out to be. The reason is not hard to discern. Controversies over the meaning of rules — especially rules about justice, freedom, and force, which must be applied in unforeseeable circumstances — are inevitable. Constitutions do not speak for or interpret themselves. People interpret them. There is no way to avoid moral and political discourse. And there’s always the chance that someone else’s interpretation will prevail. What then?
The Constitution, let us not forget, was the product of compromise, crafted so as to be acceptable both to Federalists, those who wanted a strong central government, and Antifederalists, those who wanted a weak central government, such as the one under the first constitution, the Articles of Confederation. (Yes, the labels should have been reversed.) The proof is that Alexander Hamilton and Thomas Jefferson, whose political philosophies could hardly have been more different, could both look on the Constitution with favor. As historian Merrill Jensen wrote:
Once it was adopted Thomas Jefferson and Alexander Hamilton, with two opposed ideas of what the United States should be, laid down two classic and contradictory opinions of the nature of the Constitution. The two basic interpretations may be simply stated. Jefferson held that the central government was sharply limited by the letter of the Constitution; that in effect the states retained their sovereign powers except where they were specifically delegated. Hamilton argued in effect that the central government was a national government which could not be restrained by a strict interpretation of the Constitution or by ideas of state sovereignty. [Quoted here.]
Appeal to the Framers
Can’t we resolve the differences over meaning by appealing to the writings of the framers, such as the Federalist Papers or James Madison’s letters and notes on the Constitutional Convention? We can try. But where does that get us? Anything the framers said or wrote about the Constitution was necessarily expressed in language — which inevitably will be subject to the same controversies regarding its application as the Constitution itself. The problem is merely moved back a step. Instead of arguing about the Constitution, we’d be arguing about what Madison, Hamilton, and John Jay wrote about the Constitution. But if a given interpretation of a constitutional clause is controversial, wouldn’t the framers’ statements about the clause be controversial also? How do we resolve any controversy? By resort to other statements? The process would have no end.
As Ludwig Wittgenstein noted, “[A]ny interpretation still hangs in the air along with what it interprets, and cannot give it any support. Interpretations by themselves do not determine meaning.” (Roderick Long elaborates on this point here.)
Take the pesky General Welfare Clause. The term general welfare appears in the preamble to the Constitution as well as in Clause 1 of Article I, Section 8, which sets out the powers of Congress. Contrary to what many constitutionalists believe, the clause looks like a general grant of power: “Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises, to . . . provide for the common Defense and general Welfare of the United States. . . .” (Emphasis added.) Following Clause 1 are 17 more clauses, each beginning with the capitalized word To like the one above. This suggests that all 18 clauses are coequal, independent items in a list. Clause 1, then, does not look like a preamble introducing an exhaustive list of 17 powers. (For more on this see my The Constitution or Liberty.)
Madison rejected this interpretation, which had been voiced by the Antifederalists. In Federalist 41 he writes,
It has been urged and echoed, that the power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States, amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases….
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?
Does this dispose of the matter? Hardly. First, the Constitution does not direct us to consult Madison for definitive interpretations of possibly vague clauses. (Must we also find out what Hamilton thought?) In the Federalist Madison was selling the Constitution to a partly skeptical population. It is plausible that the Federalists who dominated the state ratifying conventions were aware of this and didn’t take Madison’s pitch seriously. At any rate, we can’t know what was in their minds when they voted aye. We only know what language they assented to.
Second, the construction of Article I, Section 8, is, alas, patently inconsistent with Madison’s interpretation. (I’m reminded of Groucho Marx’s line, “Who are you going to believe, me or your own eyes?”) Madison’s point about the semicolon is ironic, since it supports my interpretation not his. Madison’s case would have been stronger if the punctuation mark were a colon, since that’s how we introduce lists.
At any rate, Madison wrote in another context, “For myself, I am aware that the document [in this case, a presidential veto message] must speak for itself, and that . . . [the author's] intention cannot be substituted for [the intention derived through] the established rules of interpretation.” (Quoted in James Madison’s Theory of Constitutional Interpretation by F. Jefferson Powell. Documents, of course, don’t really speak for themselves.)
Appeal to the Preamble
Some might say that we must judge Article I, Section 8, by the entire Constitution and specifically the purposes enumerated in the Preamble. Fine. Here’s the Preamble:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Conspicuously missing from this list of purposes is: to constrain the powers of government. How did we overlook this? One comeback is that restraining government is implicit in the references to justice and liberty. In my view, justice and liberty certainly require limitations on the power to inflict violence. But there are other notions of justice and liberty. Advocates of expansive government power also see themselves as champions of justice and liberty. How do we know that the language in the Constitution doesn’t mirror these competing notions? There was a good deal of government intervention in the states back then.
We could answer that question by pointing to the Declaration of Independence, which embraces the rights to life, liberty, and the pursuit of happiness. But does that really get us out of the woods? Someone who believes the Preamble authorizes the welfare state will similarly believe the rights to life, liberty, and the pursuit of happiness entail the welfare state. But even if the Declaration resists that interpretation, we must note, as Jensen did, that the founding fathers who wrote the Constitution of 1787 were quite a different set of men from those who signed the Declaration of Independence in 1776.
My message is not one of despair. But we will not cause the freedom philosophy to prevail merely by invoking a political document written by men who thought the main problem with America was too little, not too much, government. Rather, we must cut to the chase and convince people directly that our concepts of freedom and justice best accord with logic — and their own deepest moral sense.
To be continued.