Mistreating the Constitution?

If recent items in The Freeman are any indication, its writers take a rather dim view of the Constitution and the Framers thereof. While I couldn’t agree more regarding the people who wrote our federal compact (with a few exceptions), I must take issue with how the magazine treats the Constitution itself.

Sheldon Richman started what seems to have become a trend in Constitution-bashing with his article regarding the Tenth Amendment and its non-similarity to Article II of the Articles of Confederation, which withheld powers not “expressly delegated” from the Confederation Congress (“The Constitution or Liberty,” January–February). A couple of months later, Joseph Stromberg noted the not-so-honest nature of the delegates to the 1787 Convention that produced the Constitution (“Slick Construction Under the Articles of Confederation,” April). And now, most recently, a book review of Kevin Gutzman’s Politically Incorrect Guide to the Constitution by J. H. Huebert once again raises the argument that the Constitution written in 1787 was at worst a hoax, and at best useless (May).

The key problem with all the above authors, in my mind, is not their evaluation of the intentions of nationalists like Madison and Hamilton. These men were indeed snakes of the worst sort, with Hamilton being the least dangerous precisely because he never pretended to favor republican government. Rather, the authors misunderstand the notion of originalist jurisprudence. A true originalist jurisprudence looks not to what individual delegates to the Convention wanted, but to what they said when they were asked to explain the fruit of their labor, especially to the state conventions that ratified the Constitution. Only when such explanations fail us should we turn to what was said in Philadelphia, and even that is better than what a single delegate such as Hamilton would have desired.

Why must originalism be understood in this way? In short, because any compact (which is what the Constitution was claimed to be) is only valid insofar as it is not fraudulent. Hence, if Hamilton admitted in the Federalist that the federal government could not do such-and-such, and the New York ratification convention ratified it under that understanding, then that is the meaning, regardless of the language of the Constitution or Hamilton’s particular desires.

It is true, as Huebert says, that ambiguity inheres in any constitution, especially short ones. However, relying on only the “people’s eternal vigilance” obviously works no better, since even with both a written constitution and a population bred to liberty, we have reached a deplorably unfree state. The key is to have both, because a vigilant people can be vigilant of nothing without a universal reference, unless the writers of The Freeman suggest a pure democracy. That universal reference is a written constitution. Likewise, a written constitution is also, by itself, worthless. It is mere paper, after all. However, we can control, to some degree, whether there is a constitution and what it says. We cannot, on the other hand, control whether the population under that constitution is “vigilant.” So let’s not leave out the one element we have control over, lest we abandon all hope to limit government.

—JOSHUA SCOTT
SCOTTJ82@lsus.edu

Sheldon Richman replies:

Mr. Scott raises several provocative issues in his thoughtful letter—alas, too many to respond to here. So I will address them and related matters in a future article. For now, let two quotations suffice:

“[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.” —Ludwig Wittgenstein, Philosophical Investigations (198)

“[I]f the Constitution demands just compensation for victims of eminent domain, then such victims must receive whatever is actually just, not what the framers thought was just, since the Constitution says to give ‘just compensation’ rather than saying to give ‘whatever we consider just compensation.’ ”—Roderick T. Long, “The Nature of Law,” Part III.

Voting Locally

Donald Boudreaux’s article “I Won’t Vote” (April). . . illustrates one of my main concerns with libertarian thought, e.g. the complete failure to recognize the difference between what local, state, and federal levels of government can and should do. While Mr. Boudreaux’s ideas make some sense for the election of a president or a senator, they make no sense whatsoever for the election of a city councilman or a school board member. In my community, at least, these are frequently decided by a mere handful of votes. In a city-council election, a tally of 100 to 105 votes is not at all uncommon. In such an election, if I were to switch my vote and I could convince two others—say, my wife and an older child—to do likewise, I could completely change the outcome of the election. Mr. Boudreaux pats himself on the back for his attitude toward voting. In local elections, 90 percent, and frequently more, of the voters share his attitude exactly.

One reason, of course, is that for both liberals and libertarians, these elections mean, or should mean in their view, next to nothing. That this should be the case for so-called liberals, who feel that every responsibility should rest ultimately with the federal government, is not surprising. What I find annoying is that although libertarians, in theory, at least, are opposed to that sort of thing, on a practical level they lend it de facto support. Local leaders, elected for the most part by a handful of friends and neighbors, struggle to do what they can to make life as pleasant as possible for those same people, find themselves characterized by libertarians, when they don’t agree with absolutely everything the local leaders do, as “lifestyle Nazis” or something similar. I am perfectly aware that there is a great deal of corruption and downright stupidity in local politics, but I can’t help but feel that such problems would be greatly reduced if fewer people adopted Mr. Boudreaux’s attitude.

. . . Indeed, if we would take a greater interest in our local government, it would be greatly strengthened and there would be a greater demand for the state and federal governments to “play by the rules.” One quote that Mr. Boudreaux chose to highlight, “I implicitly agree—by voting—that the process of selecting people to exercise power over me is legitimate,” indicates that he does not feel he should be subjected to government rules at any level. This indicates a belief that his behavior and thought is, or should be, the standard of right. As I understand his position, Leonard Read felt that this very attitude was the greatest enemy of the free market. . . .

—MERRILL GEE
Salt Lake City, Utah

Donald Boudreaux replies:

I appreciate Mr. Gee’s response to my article. I concede that voting in local elections presents less of a moral problem than does voting in national elections. Local governments aren’t as able to be as oppressive as national governments, if for no reason other than that each of us can more easily move out of any particular local jurisdiction than out of any country.

But I disagree that any practical reasons counsel an individual to vote in a local election. Even in local elections an individual’s vote is extremely unlikely ever to decide an outcome. The analytics of determining the probability of decisiveness of a single vote are quite complex—see chapter four of Geoffrey Brennan and Loren Lomasky’s Democracy and Decision for a comprehensive treatment of this issue—but, practically speaking, the probability of one vote deciding the outcome of an election in a small town with, say, 1,000 voters is not meaningfully much higher than is the probability of one vote determining the outcome of a national election with millions of voters.