“How little my countrymen know what blessings they are in possession of and which no other people enjoy” (Thomas Jefferson)
[I]n all the world’s history, there is nothing to compare with the pledges of human rights and freedom that have been worked into our charter of government at the great moments of national history . . . . It is only at great moments that such advances are possible. Between such moments there is most likely to be, first, a contented coasting on a path made smooth by established rights; then forgetfulness of those rights; finally, a challenge of them fired by passions made dangerous by ignorance. That leads either to loss of liberty or to the restoration of freedom through the resurging spirit of the people” (Irving Brandt in The Bill of Rights)
“If a nation expects to be ignorant and free . . . it expects what never was and never will be” (Thomas Jefferson)
Millions today sense that this country is heading in the wrong direction. Social media is filled with tweets, posts and blogs that call on Americans to “take back our country.” “restore America,” “makeDClisten” or just “throwthemallout.” Fearful over the shocking growth and growing intrusiveness of “Big” government, conservatives, libertarians and Tea Party patriots speak of the urgent need to retrieve the nation’s founding principles. It is time, they insist , to restore constitutional government. Only then, they warn, can we leave to future generations the blessings of liberty our founders left us. This, though, begs some unsettling questions.
How exactly does the Constitution limit the exercise of political power? What would a return to Constitutional government look like? How would it alter the policies of, say, the Depts. of Education, HHS, HUD, Agriculture, Labor or Commerce? Today Washington DC is surrounded by some of the wealthiest counties in the country. The Construction trades are booming, powered by the steady increase of bureaucrats, administrators, legislative staffs, special interest groups and K Street lobbyists. So how different would the DC skyline look if Constitutional principles were once again invited into the halls of power?
Unfortunately, the Constitution’s actual language furnished no absolute answer. Under Article 1, Section 8 the powers ceded to the federal government are clearly enumerated. Except the Article ends by granting Congress the power “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.” A very broad grant, indeed, and broadened further in its authorizing Congress to “promote the general welfare.” It was Alexander Hamilton who crowed, “The phrase is as comprehensive as any that could have been used . . . . It is therefore . . . left to the discretion of the National Legislature to pronounce upon the objects which concern the general welfare, and for which . . . an appropriation of money is requisite and proper” (LIA p. 283). “Under a clause such as this,” said one foe of ratification, “can anything be reserved and kept back from Congress? . . . for who shall judge for the legislature what is necessary and proper? Who shall set themselves above the sovereign?” Another opponent of the new frame lamented, “by this Constitution Congress shall have ‘a power of passing laws to provide for the general welfare of the United States, which [laws] may affect life, liberty and property in every modification . . . unrestrained by a declaration of any of those rights which the wisdom and prudence of America in the year 1776 held ought to be at all events protected from violation” (LIA p. 272).
After a few years, the Bill of Rights would go into force, guaranteeing to every (white male) citizen free speech, a free press, religious liberty, etc. Now, the 4th Amendment stipulates that “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated . . . ” And the 5th Amendment, in part, says that no person shall “be deprived of life, liberty, or property, without due process of law.” Despite all this, the federal government has grown ever bigger, ever more expensive, and ever more intrusive, taxing, borrowing and regulating with carefree abandon. Looking at the strict letter of the law, no firm guardrails confining government to a limited sphere of power can be found. It remains unclear when a people can say to their elected leaders this far and no farther. The “Due Process” clause far from protecting anyone’s “life, liberty and property” has come to be construed as any law Congress might deem necessary and proper to provide for the general welfare of the nation.
But the Constitution is infused with an abiding spirit. It captures and exposes the framers’ unmistakable intent, their design to set a firm limit to the powers granted the new national government (and the states, as well). America’s founders were avid students of history, determined to learn its lessons and avoid the traps that had consumed earlier societies. Nothing was more evident than the need to vigilantly guard against the awful influence of Power on human affairs, a facet of the 18th century American mind that remains woefully unreported in the popular accounts of the nation’s birth. The Constitution, indeed, is little more than a patchwork quilt of checks and balances affording each branch of government the chance to prevent any other branch from overstepping its bounds. But it wasn’t the prerogatives of any representative body that was of greatest concern to the framers. Rather, it was “to secure the blessings of liberty to ourselves and our posterity” that those 56 representatives came together in order to form a more perfect union (from the Preamble).
For the founders who fought so hard and risked everything to preserve it, Liberty was no vacuous sound or rustic turn of phrase useful for evoking patriotic feelings on some historic anniversary or holiday weekend. It was then what it is now, a broad, abstract idea that finds expression in a welter of specific ways. These included but were not confined to the specific guarantees inscribed in the Bill of Rights. More broadly, Locke and his American disciples saw liberty as “a perfect state of freedom [that allowed men] “to order their actions and dispose of their possessions and persons, as they think fit . . . without asking leave, or depending upon the will of any other man.” There was “nothing more evident than that creatures of the same species and rank, promiscuously born to the same advantages of nature, and the use of the same faculties, should also be equal one amongst another, without subordination or subjection.” And so, “being all equal and independent, no one ought to harm another in his life, health, liberty or possessions (emphasis added).
Jefferson may have written “Life, Liberty and the Pursuit of Happiness.” But since happiness on earth requires the acquisition of food, clothing, shelter, tools, etc., the freedom to own, i.e,. to gain, keep, use and dispose of material possessions, i.e., the Right of property, had to be regarded yet another of man’s natural, indispensable and inviolable rights. “The great chief end of men’s . . . putting themselves under government,” wrote Locke, “is the preservation of their property.(emphasis added).” Some argue that it is the 9th Amendment that guarantees this freedom, as it plainly states “the enumeration in the Constitution of certain rights shall not be construed so as to deny or disparage others retained by the people,” (emphasis added). The argument holds considerable historical merit.
It was precisely the wanton violation of men’s property rights in the years leading up to the Convention that counseled the need for fundamental political reform. Populist measures in several states designed to benefit debtors at the expense of their creditors, (e.g., paper emissions, legal tender and mortgage stay laws, etc.) represented patent violations of the sacred right of property. And, since, as property is a corollary of liberty, so contract is a corollary of property, the failure of the Congress and several states to service debts incurred to finance the late revolution represented another breach of sacred trust. To secure the people’s property rights from state action, Article 1, Section 9 of the Constitution plainly stipulates: “No state shall…coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.”
Since government derives its powers from the consent of the people, and since no person may give or take away what belongs to another, government may neither claim nor come by a power to TAKE from some to GIVE to others. It was Jefferson who said: “The first principle of society is a guarantee of the full exercise of industry and the possession of the fruits acquired by it.” Now, Locke and the framers understood that taxes may be collected to provide for the vital protection services citizens need and only government can furnish.
But if the Constitution is ever again to reflect the clear intent and design of those who first drafted and adopted it there will have to be a steady progressive dismantling of the welfare state in both its corporate and social aspects. All those programs that currently serve not to protect us all in the enjoyment of what is ours (including the full measure of property we rightfully acquire), but, instead, provide benefits to some (rich or poor, old or young, healthy or sick) at the expense of others will gradually be ended and the agencies administering those programs eventually closed. The principle of welfare is fundamentally incompatible with the principle of property and the proud, bygone spirit that once fervently hoped “to secure the Blessings of liberty to ourselves and our posterity” And the DC skyline, then, will be but a shadow of what it is now.