I think most readers of this site – those who read it and like it, not those who are taking notes on the "enemy" – would agree that our country would be much better off if the federal government constrained itself to the limits the Constitution places on it. If Presidents did not go to war without a formal Congressional declaration. If Congress only exercised powers specifically enumerated in the Constitution. If the Bill of Rights, including the Ninth and Tenth Amendments, remained in force. And if the federal courts did not dishonestly claim that prayers in local public schools violate the First Amendment, whereas McCain-Feingold does not.
Yes, that would be much better, in theory. But even good Constitutions do not guarantee good outcomes. The War on Drugs, or Social Security, or No Child Left Behind, are not bad because they are unconstitutional; they are bad because they are tyrannical and socialistic. It is right and valid, of course, to point out their unconstitutionality; the further federal policy strays from the constraints of the Constitution, the greater our risk of sliding into despotism. But returning to the limits of the Constitution will not solve our problems.
Remember the Mexican War, the Spanish-American War, and World War I. All declared by Congress through the legitimate, Constitutional means, and all wholly unnecessary and unjust. Even if we chained ourselves to the Constitution once again, there's no guarantee we won't continue our tradition of unjust wars.
We are proud of our Constitution partly because of the difficulty in amending it. And libertarians and paleo-conservatives are dismayed that, instead of amending the Constitution, progressives and neo-conservatives just assume that what laws they pass and programs they establish are constitutional as long as the federal courts do not strike them down. Certainly, we are correct that the more honest approach for those who favor a more active federal government is to expand its powers legitimately through constitutional amendments.
But legitimate means do not "justify" – make just – the ends. Remember Prohibition. I do not know what perverse and lethal mix of progressive do-goodism and pietistic zealotry could have persuaded two-thirds of both houses of Congress and three-quarters of state legislatures to ratify the 18th Amendment prohibiting "intoxicating liquors." But this is evidence that democracy, even when set at a very high bar of super-majoritarianism, can yield disastrous results. Prohibition was wrong, and its legitimacy under the Constitution does not make it right. Likewise, if somehow the entire nation was persuaded that we must "return to the Constitution," we will likely see an amendment to the Constitution introduced to Congress, that would officially "empower" the federal government to do what it has already been doing for the past 72 years.
And, of course, the Constitution has long been vulnerable to immoral and destructive ideas such as protective tariffs. It does not keep our tax dollars safe from a bloated and corrupt military-industrial complex. It provides no direction toward a sane immigration policy, whatever that may mean. The American people are as fully capable of oppressing themselves through taxation and Constitutional amendments, as they are through unconstitutional laws and Presidential fiat.
This is no smear or criticism of the Constitution's architects. Whether or not you agree that the Constitution was even necessary, it is safe to say that it is a brilliant plan for government. But no constitution, not even ours, is capable of protecting the people from their own fears, resentments, and prejudices. If people want big government, they'll get it, Constitutionally or not.
Ultimately, the values of libertarians and other small-government types do not depend on what the Constitution says or doesn't say, what it authorizes or doesn't authorize. Values of liberty, peace, and tolerance are not derived from the Constitution, nor are they dependent on it. We must point out and resist unconstitutionality when it appears, so as to avert greater losses of liberty. But the Constitution is not the core of our argument. Liberty is.
March 15, 2005
