TGIF: Jefferson on Not Trusting the State

Regardless of written constitutions and the laws on the books, individual liberty is always at risk. And as liberty goes, so goes our capacity to live well, to achieve the good life as rational, virtuous social beings.

The danger comes from left and right, both of which aspire to have a body of elders impose narrow cultural and moral norms on everyone, overriding our right to think for ourselves. (Progressives and National Conservatives have a lot in common in that regard, even if they differ on what is to be imposed.)

This point about the fragility of liberty was well understood by the Irish politician, judge, and orator John Philpot Curran (1750-1817), who said: "The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

As often happens, variations of this insight have been attributed to other people, most famously Thomas Jefferson, who is widely and apparently erroneously thought to have said more pithily: "The price of liberty is eternal vigilance." Curran has missed out on the credit he deserves.

At any rate, we have a problem. Although liberty is never safe from political ambition or even good intentions, most people are understandably absorbed in raising their families, earning their livelihoods, and just plain living. Thinking about liberty, much less exercising vigilance, has a low priority -- if it is on their agendas at all. I'm not finding fault; it's just a fact.

Hence the need for a degree of specialization. Libertarians to one extent or another specialize in keeping watch over liberty and drawing the public's attention to dangers from governments and nongovernment sources. These aren't entirely two separate categories because if an influential segment of the public comes to believe that liberty must be curtailed, such sentiment could find its way into the halls of power. For example, if enough people decide that offensive words or obscene images are equivalent to violent acts, politicians may take up that cause and prohibit so-called hate speech and the like. This has happened in Great Britain, where citizens can be visited by the police, fined, and compelled to take a sensitivity course for posting something on social media that allegedly made someone feel anxious. So far, thanks to the tradition of free speech and press recognized in the First Amendment, that does not happen in the United States. But we mustn't rest on our laurels. A violation could be just around any corner, and we can't be sure from which direction it will come.

Although Jefferson did not say, "The price of liberty is eternal vigilance." we know he believed it. We know this because of his 1798 Kentucky Resolutions, which he wrote anonymously for the state legislature in opposition to the Alien and Sedition Acts of that year. The Acts were passed by the Federalist party-controlled Congress under Federalist President John Adams. (Jefferson, who was not a Federalist, was the vice president at the time.) As one description of the Acts puts it:

The Resolutions by Jefferson and Madison were provoked by the Alien and Sedition Acts adopted by a Federalist-dominated Congress during the Quasi-War with France; those Acts gave the president the authority to deport any alien whom he thought a threat and made it illegal to criticize the president or the Congress. Dozens of people were prosecuted under the Sedition Act, with prosecutions targeted at newspaper editors who favored the new Democratic-Republican party – Jefferson’s party. Seeing such political prosecutions of free speech as a fundamental threat to the republic, Jefferson referred to this period as a “reign of witches."

Federalist support for the Acts was also fueled by Jeffersonian sympathy for the French Revolution. The government's fears about French influence in the United States had reached a fevered pitch.

In his Kentucky Resolutions -- a second, shorter resolution written by an unknown person passed in 1799 -- Jefferson invoked the principle that the Constitution delegated only certain limited powers to the national government and therefore the states individually could check that government whenever it broke through the limits. Hence, the document declared the Alien and Sedition Acts  "void and of no force" and requested their repeal. (Jefferson's draft called for nullification, but that language did not make the final document. It did make the second version, however.)

In making his case, Jefferson wrote something that more people need to understand, especially politicians and pundits who are sanguine about democracy. His document declared it is resolved:

that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism: free government is founded in jealousy and not in confidence; it is jealousy & not confidence which prescribes limited Constitutions to bind down those whom we are obliged to trust with power. [Emphasis added.]

Hammering the point home, Jefferson concluded: "In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." How interesting that he used the word jealousy!! The dictionaries tell us that one meaning of that word is intense vigilance. Had he read Curran's words?

By the way, those words might have gotten Jefferson kicked off Twitter and Facebook.

For Jefferson, the idea that we can elect rulers and then leave them to the business of governing us was a recipe for tyranny, even if only the "soft tyranny" foreseen by Alexis de Tocqueville. (See my "'What Sort of Despotism Democratic Nations Have to Fear'" for some of Tocqueville's sobering predictions of the harm that democratic governments could do to the people.)

I'll close by noting that, unfortunately, Jefferson was too trusting in the Constitution's capacity to bind those given power. (Remember that the Constitution did not prevent the passage of the Alien and Sedition Acts less than a decade after its ratification. Think of all that's happened since.)

Indeed, no less an authority on the Constitution, James Madison acknowledged that any constitution must delegate implied powers; that is, powers not expressly allowed to the state: "[I]t was impossible to confine a government to the exercise of express powers;" he said, "there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae." He said this during a House debate over what would become the beloved Tenth Amendment in the Bill of Rights, which reserves to the states or the people "the powers not delegated" to the national government. Madison, who is famous for saying the national powers were "few and defined," refused to allow the word expressly to be inserted before delegated. Progressivism isn't the root of the problem. (See my article "James Madison: Father of the Implied-Powers Doctrine." For a wider perspective, also see my America's Counter-Revolution: The Constitution Revisited.)

Hence, a constitution, no matter how good it looks, can't help but create a false sense of security about liberty, which is exactly what Jefferson was worried about in his call for jealousy and not confidence toward the state. Particular people will be empowered to interpret any constitution, and they, even if well-intentioned, are likely to see things differently from freedom-loving individuals.

As Lysander Spooner pointed out in an 1870 essay: "But whether the Constitution really be one thing, or another, this much is certain -- that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

TGIF: What Really Protects Liberty?

The COVID-19 pandemic has demonstrated, as if we needed another demonstration, that little stands between the government and our liberty. Champions of individual freedom have been properly disturbed by how much power governments at all levels have seized since the pandemic hit in 2020.

To make matters worse, officeholders and public-health officials object when the judicial branch occasionally overturns their power grabs because judges are said to be unqualified to rule on "medical" matters. So, if judges furnish constitutional and other legal grounds against power grabs, we're supposed to ignore them because they in fact are issuing medical opinions for which they are not qualified. That's pretty inventive reasoning, but unfortunately it is in the service of tyranny and serfdom.

Some judges have made good, that is, power-limiting, decisions during the pandemic, though they might well have gone the other way. (See John Hasnas's "The Myth of the Rule of Law.") It's only a slight exaggeration to say the judicial process is a coin toss.

When judges get it right, the devout constitutionalists among us cheer: "The system works!" But what about all the times the rulings went the other way? Where does that leave the constitutionalists? They will say that the problem isn't with the Constitution; it's with the judges. But considering that the Constitution doesn't interpret itself, who were they expecting to interpret it? Robots that have been correctly programmed? Who would do the programming? Even people within the competing schools of constitutional interpretation don't agree on everything.

Since it's people all the way down and the process is internal, not external to society, don't the constitutionalists have a wee problem?

James Madison called the Bill of Rights, which he wrote, a "parchment barrier." But he couldn't have really meant that because parchment is a poor material for making the heavy-duty, barrier liberty requires due to the predatory nature of politicians. The only real barriers in this regard are the people themselves -- people, that is, who refuse to give, carry out, or obey unjust orders. Paraxodically, orders require consent, and that can be withheld. (Think of the scene in Monty Python's Life of Brian in which Brian tells a prison guard that he doesn't have to follow orders and the guard replies, "I like orders.")

Strictly speaking, constitutions and statutes cannot compel unjust conduct or compliance. They are merely words. When governors ordered "non-essential" businesses and schools to shut down and people to stay home in 2020, those politicians didn't point guns at anyone. People obeyed, but I suspect that only a few did so lest they be punished. If someone had disobeyed, armed agents of the state might have been dispatched, but why did they obey orders? No gun was held to their heads. They might have been fired and others put in their place places, but no one would have been subjected to force.

So all these state agents acted to suppress liberty freely. They followed orders. Why? Because they believed it was proper to do so. Most of the public believed it too. So they were unlikely to interfere.

Why do all these people behave as they do? They do it because of their moral-political values, which they've absorbed since childhood. They believe deep down that the state -- which is just a large gang of people -- is mystically endowed with a moral authority that permits them to do things that the rest of us must never do. In other words, the people, who always outnumber their rulers, subjugate themselves. (See Etienne de la Boetie's classic, The Discourse on Voluntary Servitude.)

This means that the real constitution in any society is not necessarily and usually is not the written one. The real constitution is reflected in most people's day-to-day actions, attitudes, and de facto institutions. It may conform to or conflict with the written constitution. As Roderick Long writes, “what matters is a nation’s ‘constitution’ in the original sense of the actual institutions, practices, and incentive structures that are in place.” (See “Market Anarchism as Constitutionalism.”)

The upshot is that if people's values are not consistently pro-liberty, it won't matter in the long run much what the Constitution "says," and if they are pro-liberty, then it won't matter whether there is a written constitution -- or a state for that matter. In this respect, the debate between libertarians over whether the state is either necessary or proper starts to look rather different. Stateless societies would have constitutions too. As Long puts it:

Anarchy thus represents the extension, not the negation, of constitutionalism. Instead of thinking of anarchy as a situation in which government has been squeezed down to nothingness, it might be more helpful – at least for minarchists – to think of anarchy as a situation in which government has been extended to include everybody. This is what Gustave de Molinari, the founder of market anarchism, meant when he wrote, in 1884: “The future thus belongs neither to the absorption of society by the State, as the communists and collectivists suppose, nor to the suppression of the State, as the [non-market] anarchists and nihilists dream, but to the diffusion of the State within society.”...

Anarchy is the completion, not the negation, of the rule of law. 

But didn't Madison give us liberty-protecting checks and balances? Not really. What he actually bequeathed was a simulacrum of what a fully freedom-based system would provide. While he hyped his Constitution as featuring a separation of powers (and a context in which ambition would neutralize ambition), he overlooked the likelihood that the branches and special interests may discover that collusion against the people is more profitable than competition among themselves.

In contrast, as Long points out,

Far from eschewing checks and balances market anarchists take market competition, with its associated incentives, to instantiate a checks-and-balances system, and to do so far more reliably than could a governmental system…. Separation of powers, like federalism and elective democracy, merely simulates market competition, within a fundamentally monopolistic context.

These insights are valid regardless of the content of a given written constitution, although libertarian and conservative constitutionalists' love affair with the U.S. Constitution is curious. As the Anti-federalists pointed out when the Constitution was first proposed, the taxing power, absent from the Articles of Confederation, is virtually unlimited and the necessary-and-proper clause is downright scary. Then there's that power to regulate trade, the commerce clause! It also was absent from the Articles of Confederation. (Not that I would have been satisfied with that document. But the comparison is illuminating.)

I won't mention the executive branch's royal power over military and foreign policy. Its consequences have been too terrifyingly obvious to need elaboration here.

And let's not forget the Constitution's implied powers. I know, I know: the Constitution has no implied powers. The national government may only exercise powers expressly delegated. Right? Sorry. As Madison himself said during the debate over the proposed Tenth Amendment," it was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae." Ouch!

Of course, no article about the Constitution would be complete without quoting Lysander Spooner's irrefutable "The Constitution of No Authority," published in 1870, a time much beloved by constitutionalists:

But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist

What's to stop a return of all the restrictions if COVID-19 rears its ugly head or when the next pandemic comes long? Not the Constitution. Constitutions are security blankets, and like all security blankets, they distract from real danger: the unspoken values people hold that are inimical to liberty. Only education and persuasion can instill pro-liberty values.

(Read more about these matters in my book America's Counter-Revolution: The Constitution Revisited.)

The Framers' Error

James Madison and the other framers thought cooperation could not be achieved without the state. They also thought that under their Constitution ambition would counteract ambition to limit state abuse. But they didn't foresee that ambitious parties would manage to cooperate, without state direction, in a conspiracy against the public. So the framers' double error is really the same error: cooperation does take place without state compulsion. That being so, we don't need the framers' system in which ambition counteracts ambition.

TGIF: The Constitution and the Standing Army

The U.S. Constitution can reasonably be seen as a massive tax and mercantilist trade-promotion program. However, there's a third leg to this stool. It was a national-security program as well -- almost a proto-PATRIOT Act. Indeed, these three elements formed an integrated project: it gave the new central government independent power to raise revenue by taxing individuals directly and to establish an army and navy in order to advance, by force if necessary, American trade. This, I submit, was not exactly a libertarian project. It let a terrifying genie out of the bottle ostensibly in order to contain it. Or, as James Madison put it, "You must first enable the government to control the governed; and in the next place oblige it to control itself."

Madison on Government and Force

While we have no evidence that George Washington said, "Government is not reason, it is not eloquence — it is force. Like fire it is a dangerous servant and a fearful master," we can report that James Madison did say this:

[There] never was a Government without force. What is the meaning of Government? An institution to make people do their duty. A Government leaving it to a man to do his duty, or not, as he pleases, would be a new species of Government, or rather no Government at all. 

Quoted in Max M. Edling's A Revolution in Favor of Government, and attributed to the Virginia ratifying convention, Doc. Hist. v. 10, I 302.

Thus Madison would have understood that libertarian minarchism without taxation is incoherent.

TGIF: The Bill of Rights Revisited

Drawing on work by historian Gordon S. Wood, I recently suggested that we see the U.S. Constitution not as a landmark in the struggle for liberty, but rather as a move to introduce elements of monarchy and aristocracy into an American political system that had become too democratic -- among white males with property -- for America's upper crust. As Wood wrote in Empire of Liberty: A History of the Early Republic: 1789-1815, "Benjamin Rush [a signer of the Declaration of Independence] described the new government in 1790 as one 'which unites with the vigor of monarchy and the stability of aristocracy all the freedom of a simple republic.'" But is that union actually coherent?

TGIF: The Constitution Revisited

I am mystified that so many libertarians still see the U.S. Constitution as a landmark achievement in the struggle for liberty. On principle alone, they should have become wary in time. A document that is adored at virtually every position in the political firmament should arouse suspicion among libertarians.

TGIF: The War of 1812 Was the Health of the State

 Even a war that appears justifiable — Britain conscripted Americans into its navy and interfered with commerce — had enduring illiberal domestic consequences beyond the immediate transgressions of taxes, debt, and trade embargoes — dangerous precedents were set.

Read it here.

TGIF: James Madison: Father of the Implied-Powers Doctrine

Don't be fooled by Madison's promise that the Constitution would create a government of "few and defined" powers. Read about the real Madison.