I’m afraid it was an unrealistic hope. You can say many good things about the Founding Fathers, but these gentlemen fell short in one, critical way: The Constitution they drafted contains no significant intellectual impediment to the endless growth of government; that is, it does not explain what’s wrong with too much government. If anything, it goes in the opposite direction, inviting politicians to use the federal government to address everything. This invitation stands in the preamble, where after noting government’s obvious jobs — “establish Justice” (a court system), “insure domestic Tranquility” (armed forces to put down riots), “provide for the common defence” (armed forces to take care of foreign invaders) — the drafters added that government’s function was also “to promote the general Welfare.”

This phraseology may not have had much importance in 1787, when communication about national issues was limited. In modern times, however, the mass media turn every human need into a national problem that can be said to affect the general welfare:  unemployment, wages and working conditions, medical care, education, food production, science, natural disasters, and so on. Following the lead of the preamble, lawmakers feel justified in using government to address every one. The result is a big and ever-growing government.

“What Else Is There?”

What’s the way to stop this drift? For the answer, we need to examine the logic that drives governmental growth. The modern argument for government involvement looks like this:

1. Problem X affects the general welfare;

2. Government is the only institution that can address national problems;

3. Therefore, government has to step in and address X.

Notice how the argument depends on statement 2, that government is the only answer. If you accept that assumption, then you are pretty much bound to agree that government has to be involved. Not to agree makes you look cruel and insensitive, unwilling to fix the nation’s problems. And it doesn’t matter how badly government has performed in the past. Those urging more government concede that government is wasteful, often inept, and corrupted by special interests. But that doesn’t affect their position.  “We’ve got to do something,” they say. “After all, what else is there?”

Well there is something else, but we often overlook it because it’s not big, imposing, and centralized like government. It’s the millions of independent thinkers and doers who each day strive to make the world around them a better place, working individually, and joining together with friends and neighbors, in groups, churches, associations, and businesses. We can call this problem-solving system the private sector, or civil society, or the voluntary sector.

Although we often don’t stop to realize it, this collection of independent actors is working to address just about every national problem you can think of. Take disaster relief. On this subject standard political logic has taken us to a big-government solution. Hurricanes and earthquakes certainly affect the general welfare; therefore, we say, government must step in. So we end up with the Federal Emergency Management Agency. Many agree that this massive bureaucracy is inept and wasteful, but if you suggest closing it down people say, “We have to have it. When disaster strikes, we can’t just sit by and do nothing.” That’s the fallacy of assuming only government can solve problems.

When disaster strikes, the fact is that millions of individuals react in constructive ways. The people immediately affected do much to take care of themselves and their families. Neighbors pitch in to help neighbors. Businesses sell — or donate — needed supplies. Churches send aid and volunteers. Voluntary groups in other regions take up collections and send supplies. Businesses rebuild. Philanthropists support reconstruction projects. This vast multitude of helping hands is a disaster-relief system. The same is true for other problems: education, working conditions, medical care, and so on. The private sector can and does address all of these issues.

It’s biggest enemy, the institution standing in the way of this vital, intricate system of private, voluntary action is. . . government! It undermines the private sector in three ways:

1. Resources. Government’s taxation drains wealth from the private sector. Every dollar government puts into its programs comes, directly or indirectly, from individuals, businesses, and groups that would have used their resources to do what the government agencies try to do.

2. Regulations. Government’s rules and regulations are, like taxation, a burden on the private sector. Every minute someone spends filling out a government form is a minute he cannot use to help a neighbor.

3. Motivation. Private action is prompted by the belief that we make a difference. When people assume government is supposed to solve problems, it weakens their motive to help themselves, and it weakens their inclination to reach out and solve problems in their community.

In conclusion, if the Founding Fathers had wanted to block the drift toward big government, they should have written a preamble that extolled the virtue of the private sector, perhaps like this:

We the people of the United States of America, recognizing—

That the general welfare is promoted by individuals, families, neighbors, and societies

freely striving to improve the condition of mankind,

And further recognizing—

That government action often counteracts their independent, creative activities;

Do hereby establish a government which shall establish Justice, insure domestic Tranquility, and provide for the common defence.

Wolf ponders the question, “What is the role of the state,” and notes that a “strand” of classical liberalism (or libertarianism) “believes the answer is to define the role of the state so narrowly and the rights of individuals so broadly that many political choices (the income tax or universal health care, for example) would be ruled out a priori.”

Wolf here looks at choice from the perspective of the group, although only individuals choose. Thus he thinks if individuals are free, society is not free to do all that it might want to do, such as tax people’s incomes.

But the contest is not between society and individuals. So actually Wolf is lamenting that if libertarians had their way, some people could not use the State to restrict other people’s choices through the threat and use of aggressive force.

It is certainly true that libertarianism rules out some choices. But some choices are illegitimate. I can’t join Wolf in seeing a moral equivalence between wanting to keep the fruits of one’s labor and wanting to deprive others of theirs.

Wolf thinks libertarianism is “a hopeless strategy, both intellectually and politically.”

Why intellectually? “[B]ecause the values people hold are many and divergent and some of these values do not merely allow, but demand, government protection of weak, vulnerable or unfortunate people. Moreover, such values are not ‘wrong’. The reality is that people hold many, often incompatible, core values.”

I’m sorry, but I don’t quite get this. Is Wolf saying that government is the only advocate of the weak? When has government ever truly been the advocate of the weak? In any political system—including democracy—some are closer to power than others; some have a comparative advantage in manipulating the system, but it’s not the weak and vulnerable. Those in power use the weak to justify their usurpations. The weak may even be provided some level of succor—after having been exploited through mercantilism, corporatism, or one of the other alternatives to the free market. They must be pacified and rendered harmless, after all.

Wolf is certainly right that people hold incompatible values. One payoff of liberalism is that it permits peaceful coexistence among such people. When religion was a State matter, everyone had to be concerned that if his sect didn’t control the government, he would be persecuted. When no sect could gain political power, that threat disappeared and people could live peacefully even if they didn’t particularly like each other.

And why is liberalism hopeless politically? “[B]ecause democracy necessitates debate among widely divergent opinions. Trying to rule out a vast range of values from the political sphere by constitutional means will fail. Under enough pressure, the constitution itself will be changed, via amendment or reinterpretation.”

Here Wolf stands on more solid ground. If people generally see nothing wrong in taking other people’s things or otherwise depriving them of liberty, they will undoubtedly get around any constitutional prohibition. A constitution is only as good as people’s understanding of it. No constitution interprets itself. We can’t program a computer with The True Meaning and have it resolve all constitutional disagreements. People will do the interpreting, and no interpretation can put an end to the interpretative process.

I have no simple answer for how to establish liberty or prevent ideological erosion once it’s established. Through a variety of activities (cultural and educational) we’ll have to re-instill the libertarian maxims most people learn as children but fail to apply politically: Don’t hit, don’t take other people’s stuff, and don’t break your promises (contracts). Libertarianism is just the consistent application of those maxims. Maybe, as Anthony de Jasay suggests, these need to become taboos—things people just don’t do, even if they can’t recite a philosophical argument telling you why.

* * *

Until now the world of fashion has been innovative and competitive without the protection of “intellectual property” law, but some want Congress to extend copyright to fashion design. Good idea? Edward López has his doubts.

The adage “less is more” is an important guide to explicit rulemaking. Thomas Snyder and Noel Campbell find an example in an unlikely place.

We’ve seen mandated recycling of trash before. Get ready for the next step: electronic surveillance of your recycling and refuse activities. Wendy McElroy has the details.

In recent decades many nations made at least some progress in expanding economic freedom. However, the response around the world to the latest economic debacle has caused the index of economic freedom to decline. James Gwartney, Robert Lawson, and Joshua Hall interpret the results they have compiled.

Since 1980 the U.S. government has required 18-year-old males to register with the Selective Service System, although no draft has been in effect since the mid-1970s. There is a criminal penalty for not complying, but as N. Joseph Potts explains, there are other penalties as well.

Can an economy be stimulated by extending unemployment benefits? Our Keynesian culture thinks so. James Ahiakpor dissents.

Rare earth elements are becoming increasingly important in the production of high-tech products, with China being a major producer. Should the U.S. government stockpile these materials to guard against supply disruptions? Warren Gibson takes up the question.

Although inconsistent, the California courts are beginning to see that free speech is rooted in property rights and that owners should be free to set the rules. Steven Greenhut looks at recent cases.

In the columns department, Lawrence Reed expresses his admiration for Scotland’s William Wallace. Thomas Szasz reflects on the nature of psychiatry’s “bible.” Stephen Davies celebrates the Scottish Enlightenment. John Stossel sounds the alarm for entrepreneurs under attack. David Henderson ponders the proposed Islamic center in Lower Manhattan. And Ivan Pongracic, Jr., confronting the ipse dixit that wealth distribution would end the recession, responds, “It Just Ain’t So!”

The coming dollar crisis, the orgy of government spending, the drug war, and democratic tyranny are the subjects of books under review this issue.

Capital Letters challenges the argument that savings lowers GDP.

The answer to the question “Is freedom a radical idea” is:  no and yes. Let me explain.

Starting with the “no”:  Most children grow up learning the libertarian, or nonaggression, ethic. Parents say: “Don’t hit, don’t take other kids’ stuff without asking, and don’t break your promises.” Nothing radical – in the sense of out of the mainstream — there. It neatly translates into: Respect life, liberty, and property, and honor your contracts.

Most people carry these principles with them into adulthood. They avoid common-law crimes against persons and property, not because they are afraid of the cops but because criminal behavior conflicts with living the life they want to live.

Libertarianism can be seen therefore as merely a plea for the consistent application of these rules to and for everyone. It’s Spencer’s Law of Equal Liberty.

Now let’s move on to the “yes.” In the political realm, freedom has been a radical idea indeed, the exception. There the rules are different. The State — that is, certain special individuals — may “legitimately” do what you and I can’t do. If you or I kill when our lives are not in mortal danger, it is called murder. When the State does it, it is called war, or counterinsurgency, or capital punishment. If you or I, threatening force, demand money from our neighbors for their protection or to do good works, it is called robbery. When the State does it, it’s called taxation. If you or I impress someone into service against his or her will, it’s called slavery. If the State does it, it’s called conscription or national service. Etc. Etc. Etc.

Why these differences? Many reasons have been offered throughout the millennia. The State was said to be the deity’s agent on earth. It was said to embody the general will. And it was said to operate by the consent of the governed.

Regardless of the rationalization, the State, by a process of moral alchemy, or moral laundering, claims to turn bad things into good. By this ideology, rulers have kept the idea of freedom tightly contained, when it is in effect at all.

Freedom Far Removed

Thus throughout history, and with only the rarest of exceptions, freedom has been far removed from the center of political events — even during that ostensibly exceptional period, say, 1776-1901. This is not to say the idea of freedom played no role whatever (the Declaration of Independence was a gleaming embodiment of the idea), but most of the time, it did not play the fundamental role that we tend to believe.

Contrary to popular sentiment, for example, freedom was not the driving force along the road to the Constitution (pdf), which has been fairly called a counterrevolution. We need only remind ourselves that the Constitution came after the Articles of Confederation, which (for all its faults) had deprived the national quasigovernment of both the power to tax and the power to regulate trade. (Can you imagine?) Those omissions, which Madison, Hamilton, and other leading founders regretted so badly, were “corrected” in Philadelphia in 1787. (Albert Jay Nock called it a coup d’état.) The warnings of the prophetic Antifederalists were ignored, and except for Jeffersonian respites now and again, we’ve lived with the predictable consequences ever since. John Taylor of Caroline and others were complaining about big government in the early 1800s!

Well, as historian Merrill Jensen put it, 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.”

Violations of Freedom

The U.S. government of course sanctioned chattel slavery for Africans until 1865 (with lesser oppressions later), the Indians were brutalized, and the rights of women were not recognized. These things and substantial economic intervention by the states kept freedom from its rightful place. And the period from 1870 to whenever the Progressive Era started? War is the health of the State, Randolph Bourne wisely wrote. That would cover Civil Wars too. Lincoln came to power filled with enthusiasm for the Whig Henry Clay’s American System: internal improvements, protective tariffs, and central banking. Intellectual monopoly (patents and copyrights), business subsidies, and land grants to cronies were cut from the same cloth. Add the war, the income tax (which later expired), the veterans pension program, and you have the makings of one big government. The benefits of a big business-big government relationship were not lost on those with power and influence. (“The tariff is the mother of trusts.”)

Here’s how Arthur A. Ekirch Jr. summed up the touted golden age of freedom in his not-to-be-missed classic, The Decline of American Liberalism (newly reissued):

[I]n the America of the [eighteen] eighties and nineties, doctrines of laissez faire and of the limited state were being twisted and distorted from their original meaning. Businessmen and judges took up the individualism of Jefferson and [Herbert] Spencer and converted it into a rationale for materialist exploitation. Resisting public intervention or government regulation when it confined or restrained special interests, the business community, however, could see no inconsistency in an acceptance of the stream of subsidies and tariffs, of which Henry George and other individualists complained.

It turns out that most business people in that period were like most in any period. If you can gain some shelter from competition through the State, why not? Rent-seekers exist at all times, and rulers happily oblige them. (Jonathan R. T. Hughes’s The Governmental Habit Redux is instructive. See also this perceptive 1984 Freeman article by Edmund Opitz, “The Robber Barons and the Real Gilded Age.”)

Undeniably, material conditions improved for most Americans throughout this time. A degree of economic freedom goes a long way, and entrepreneurship found ways around the powers that be. But in a fully competitive economy, living standards would have risen — but without the distortions of monopoly (as identified by Benjamin Tucker), protection, and subsidies (most egregiously and consequentially in transportation) — and with more opportunity, later on, to make a living independent of any corporate hierarchy. (Yet who would not accept a slower acceleration in living standards as the price for a greater degree of freedom and independence?)

What does this tell us about freedom? It tells us that the good old days still lie ahead.

Almost everyone in authority claims to revere the Constitution. However, few people of them believe they should be bound by the limitations that define the document.

During the late 1800s and early 1900s the U.S. Supreme Court struck down laws imposed at all governmental levels that attempted to regulate business hours and employee pay. Today, the U.S. secretary of labor dictates much labor policy.

More than a century ago most Americans would have been shocked to see federal agents visiting businesses and even private dwellings. Today, federal agents are a part of daily life, as the government regulates more and more of our private affairs.

How did Americans go in a hundred years from people who had little contact with the federal government to now having much of their lives controlled by federal policies? How did the State grow so large and so powerful? In a word, it was “Progressivism.”

Guy Rexford Tugwell, one of President Franklin Roosevelt’s most influential advisers, noted that Progressives had a very different view of the State than did the framers of the Constitution. He wrote:

The Constitution was a negative document, meant mostly to protect citizens from their government…. Above all, men were to be free to do as they liked, and since the government was likely to intervene and because prosperity was to be found in the free management of their affairs, a constitution was needed to prevent such intervention…. The laws would maintain order, but would not touch the individual who behaved reasonably. [Emphasis added.]

However, that state of affairs, according to Tugwell, was not acceptable. He continued:

To the extent that these new social virtues developed [in the New Deal], they were tortured interpretations of a document intended to prevent them. The government did accept responsibility for individuals’ well-being, and it did interfere to make [them] secure. But it really had to be admitted that it was done irregularly and according to doctrines the framers would have rejected…Much of the lagging and reluctance was owed to constantly reiterated intention that what was being done was in pursuit of the aims embodied in the Constitution of 1787, when obviously it was done in contravention of them. [Emphasis added.]

Nothing to Fear?

As Tugwell duly noted, the Constitution was written to protect individuals from the ravages of government because people understood that government power was something to be feared. However, after Progressives took control not only of government but also of other important social institutions, like education and the news media, they convinced people that they could have good government.

Progressive literature of the day, from Ida Tarbell’s “expose” on the Standard Oil Company to Upton Sinclair’s The Jungle, claimed that the real threat to individuals came from businesses, and that government needed to defend citizens from the ravages of private enterprise. Obviously, the kind of government needed to protect people by regulating and controlling businesses needed to be much larger than the government in place.

The catalyst for the expansion of the “good State” was World War I and then later the Great Depression. State intervention was justified in the name of “protecting America” and ultimately (and ironically) “protecting” the Constitution.

Progressives won the day because they gained control of the institutions that serve as “gatekeepers” in civil society, and they also won because intervention begets more intervention. For example, the Federal Reserve System, a favorite of Progressives, helped create the Great Depression and the New Deal, which, in effect, overthrew what was left of the constitutional order.

Today, the United States is what I call a “Progressive Democracy,” bearing little resemblance to the republic that existed 200 years ago. However, no matter how “advanced” government may claim to be, it still is government and needs to be controlled.

I don’t cotton to that word privilege — it’s not the Bill of Privileges — and don’t believe rights are just for American citizens, but it should be pointed out that word comes from the Fourteenth Amendment’s Privileges or Immunities Clause:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

In Barnett’s words, “Justice Thomas’s analysis summarizes and reflects a consensus of legal scholarship that the Privileges or Immunities Clause does protect at least the rights enumerated in the Bill of Rights against state interference.”

We don’t hear much about that clause, especially from the courts. Why not? Writes Barnett:

The Privileges or Immunities Clause has been virtually a dead letter since 1873, when the court in The Slaughter-House Cases limited its scope to rights of a purely national scope, such as the right to access a foreign embassy or to be protected when traveling on the high seas. It was a preposterous interpretation—these were hardly the rights congressional Republicans in the aftermath of the Civil War were most concerned to protect in the wake of the terrible abuses of free blacks and white unionists by Southern states.

So if the clause really means “rights” and if it’s making a comeback, then I guess we’re entitled to sigh of relief. Thomas says “this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.”

We’ll see.

The latest occasion is this week’s 7-2 Supreme Court decision in U.S. v. Comstock et al., upholding a federal statute that permits the civil commitment of a federal prisoner – beyond his prison sentence – if he has previously committed a violent sex crime or sexually molested a child, “suffers from a serious mental illness,” and thus is “sexually dangerous to others,” meaning, “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

Note well: Someone in the federal prison system can be held indefinitely after he’s served his sentence. For the purposes of this article, I leave aside some extremely important issues, including whether any government should have the power to incarcerate (even if in a “hospital”) someone because a psychiatrist says he has a “mental illness” and may “have serious difficulty in refraining” from sexually criminal activity in the future. This is a far cry from the traditional criminal law. Readers of The Freeman will know that these subjects have been thoroughly examined over the years by Thomas Szasz, who maintains that the diagnosis “mental illness” is a metaphorical, pseudoscientific way of dealing with undesirable behavior; that civil commitment, or involuntary mental hospitalization, is a “crime against humanity”; and that people should be punished with only after they have been proved to have committed a crime and only for that crime. (He has also relentlessly opposed the insanity defense and verdict.)

The statute in question surely violates the principles of liberty and justice. But the question is whether it violates the Constitution.

The chief matter before the Court was whether the law satisfies the Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18), which authorizes Congress “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.”

Writing for the majority, Justice Stephen Breyer said that the commitment statute falls well within the clause as it has been interpreted from the earliest days of the Republic. Quoting terms from the early landmark case McCulloch v. Maryland, Breyer wrote, “[T]he Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’”

He noted that past Courts have allowed Congress great discretion in determining if a means is necessary (not “absolutely necessary”) and proper for achieving a constitutional end.

Indeed, Breyer wrote, the chain between a statute and the constitutional powers that it is deemed to executing may have several links. “Congress has the implied power to criminalize any conduct that might interfere with the exercise of an enumerated power, and also the additional power to imprison people who violate those (inferentially authorized) laws, and the additional power to provide for the safe and reasonable management of those prisons, and the additional power to regulate the prisoners’ behavior even after their release.”

Thomas Dissent

In his dissent, Justice Clarence Thomas (writing on behalf of Justice Antonin Scalia also) said that Breyer has misread the Clause and long precedent. For Thomas, convicting someone of a federal crime under a law that satisfies the Necessary and Proper Clause gives the government no additional authority to civilly commit after sentence is served. In other words, whatever enumerated power ultimately justified the person’s initial imprisonment, it cannot convey legitimacy to postsentence detention. The chain is too long for Thomas.

“The Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” He added, “[I]f followed to its logical extreme, [Breyer’s approach] would result in an unwarranted expansion of federal power.

Is It a Draw?

Both sides appear to make sound constitutional arguments. Although I of course prefer Thomas’s conclusion – commitment is an outrageous violation of individual liberty – that is irrelevant. The point is, people can reach opposing conclusions through the text of the Constitution and past decisions. Remember: The Court’s four conservative “strict constructionists” split down the middle.

That’s where the Antifederalists come in. The Necessary and Proper Clause was one of several clauses they most objected to when the text of the Constitution was released to the public in 1787. Combined with other vaguely “enumerated powers,” they found the clause threatening to liberty and a portent of big government.

As the Antifederalist “Brutus” wrote, because of the Necessary and Proper Clause and the Supremacy Clause, “This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends.”

And “Federal Farmer,” wrote, “To have any proper idea of their [the laws’] extent, we must carefully examine the legislative, executive and judicial powers proposed to be lodged in the general government, and consider them in connection with [the Necessary and Proper Clause]….[I]it is almost impossible to have a just conception of these powers, or of the extent and number of the laws which may be deemed necessary and proper to carry them into effect….”

In other words, the constitutional text is not nearly as crisply clear as people would like to think, despite the temptation to read one’s own values into it. Thus it makes a shallow foundation for liberty. We can rely on no text to interpret and enforce itself, so we must make the case for liberty and justice directly.

Their contemporaries should have listened to the Antifederalists’ warnings when they had the chance.

Fined? For not answering intrusive questions? Par for the course, I’m afraid. The Constitution tells the government to count heads every decade, of course, but where’s the authority to force us to comply? And why does no one else ask such a question? I imagine the authorities, if ever compelled to answer that question, would reply: “Why the ‘necessary and proper’ clause of course.” It’s in the revered Article I, Section 8:

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.

If so, this once again vindicates the Antifederalists, who railed against the clause as giving a virtual blank check to the strong central government established by the Constitution. (The relevant comparison was weak quasigovernment under the Articles of Confederation.) Woe to us that these prophets were not heeded.

But Roderick Long has an answer to the authorities on this count:

[I]t’s worth noting that all the Constitution authorizes is the mere conducting of a census; it doesn’t authorize mandating compliance, since forcing people to answer is not essential to the conducting of a census. (Private groups conduct surveys all the time without enjoying such power.) So as I read the Constitution (though of course the government doesn’t give a damn about how I read it), even if one accepts the Constitution’s authority there is still no legally binding obligation to answer any of the questions.

He goes on:

Now it might be objected that the Constitution also grants Congress the “power to make all laws which shall be necessary and proper for carrying into execution” its powers – and the power to compel compliance might thereby be taken to be “necessary” to the end of enumerating the citizens.

But even if it is necessary, what’s authorized is legislation that’s necessary and proper; and compelling compliance with the census is not “proper.”

How do we know it ’s not “proper” in the Constitutional sense of that term? By appeal to [Lysander] Spooner’s 7th, 12th, and 14th rules of legal interpretation.

And I also want to register my offense at the government’s racially classifying us. The State wants to know not only how many people live in our homes and what relationship they have to us.  It wants to know each person’s race and whether he or she is Hispanic.

When are we going to cease putting up with these impositions?

What DiLorenzo offers is not a biography of Hamilton, but instead a critical examination of his ideas and a historical exploration of how they have shaped American history. DiLorenzo contrasts the statist, mercantilist, and nationalist philosophy of Hamilton with the strict constitutionalism of Jefferson. He portrays Hamilton as a schemer, quoting contemporaries who felt that he was intentionally confusing in his economic proposals as a means of hoodwinking the uninitiated. Above all, DiLorenzo shows how Hamilton’s interventionist ideas have had disastrous consequences for America up to the present.

Hamilton’s vision for the nation included a strong sense of nationalism, zealous protectionism, enthusiasm for central banking, and methods of constitutional interpretation like the doctrine of “implied powers” that essentially stripped away the Constitution’s restraints on the central government. DiLorenzo depicts Hamilton and his intellectual followers as technocrats who view society as a lump of clay for them to fashion with their expert hands. They couldn’t grasp the spontaneous order of the free market.

To borrow a phrase from Adam Smith, Hamilton was the quintessential “man of system.” In his ideal society he and others who were blessed with inside knowledge of “the common good” would arrange things just so, thereby creating the ideal society. DiLorenzo points out explicit parallels between Hamilton’s thinking and Rousseau’s idea of “the general will,” under which government officials would “force people to be free.” Individual liberty holds no importance for such people.

DiLorenzo employs Austrian and Public Choice insights to expose the lasting harm we have suffered owing to Hamilton’s assortment of big-government ideas. Those ideas later metastasized into the “American System” of Henry Clay (the term was Hamilton’s) and the wide-ranging interventionism of Abraham Lincoln. They reached their nadir in the disastrous year 1913, with the adoption of the Seventeenth Amendment (providing for direct election of U.S. senators), passage of the federal income tax, and the establishment of the Federal Reserve. DiLorenzo sees that terrible trio as destroying what was left of Jeffersonianism and shackling the nation, perhaps permanently, with Hamilton’s ruinous vision.

The book makes a persuasive case about the harm we endure because of “the curse,” but DiLorenzo left me wondering about the relative fragility and robustness of different institutional arrangements. He discusses how constitutional words and phrases like “necessary” and “general welfare” were either grossly misinterpreted or used to usher in all sorts of state interventions, and he refers to the Confederate States of America’s attempts to remedy some of these problems in their own Constitution. But the kind of restraint that would have satisfied Jeffersonian strict construction begs to be explored in greater detail.

Only a few years elapsed between the ratification of the Constitution and the violent suppression of Pennsylvania tax rebels (which Hamilton himself led), and not too many years later the United States were (yes, the plural was once used) experimenting with central banking. How did we get so far from Jefferson’s vision so quickly?

DiLorenzo blames “Hamilton’s Disciple,” Chief Justice John Marshall, for misreading the Constitution, but I have to wonder if his famous decisions were so obviously a misreading and misapplication. Some libertarians like to believe the Jeffersonian minimalist interpretation is the “real” Constitution while the expansive Hamiltonian view is indefensible, and DiLorenzo seems to accept that view without questioning it.

The exact, intended meaning of the Constitution—if that can even be discerned—is not the focus of DiLorenzo’s book, however. Hamilton’s Curse explores the intellectual history of some of the ideas that helped transform the United States from a country where the government mostly left people alone into one where the government interferes in their affairs constantly. DiLorenzo reminds us of Richard Weaver’s famous quotation that “ideas have consequences” and proceeds to show the terrible consequences of Hamilton’s ideas.

The United States government recognizes that power. It is currently engaged in an unprecedented push to count the people, citizen and noncitizen alike, living in the country. In preparation for the  2010 census, state employees even took GPS readings for every front door in America so that individuals can be located with computer accuracy.

On January 25 Census Bureau Director Robert Groves officially launched the 2010 Census when he arrived in the Alaskan fishing village of Noorvik, population 650. A symbolic dogsled run over the frozen tundra emphasized that no community was too remote or too small to escape the government’s head count. By mid-March 450 million census forms will begin arriving by mail in less exotic zip codes; census assistance centers have been established to help people complete the ten-question form. April 1, also known as April Fool’s Day, is officially recognized as “Census Day.” In late April another mailing will either thank people for responding or remind them to do so. Then census workers will knock on the GPSed doors of nonrespondents; they will do so repeatedly, if necessary.

In January the San Jose Mercury reported, “The U.S. Census Bureau has created a hiring boom. Expecting to hire up to 1.5 million Americans this year….The federal government expects to spend $14.7 billion to count every man, woman and child living in the country.” The jobs range from office clerks to supervisors and door-knockers. Their livelihoods require compliance from the American public.

Compliance is required by law; Section 221 of Title 13 of U.S. Code, Chapter 7, Subchapter II spells out several types of illegal responses to the census:

• Refusal or neglect to answer questions; false answers;
• Giving suggestions or information with intent to cause inaccurate enumeration of population;
• Refusal, by owners, proprietors, etc., to assist census employees;
• Failure to answer questions affecting companies, businesses, religious bodies, and other organizations; false answers.

Fines can range from $100 to $5,000. Nevertheless, the law is rarely enforced, and the Census Bureau relies heavily on public cooperation. To gain widespread voluntary compliance, authorities must overcome two major obstacles: apathy and a suspicion of how government will use the data. We’ll focus on the latter.

Opposition to the 2010 census has been less active than in 2000. (The Constitution mandates a census every ten years.) In 2000 approximately 16 percent of households received a “long form,” which contained more than 100 questions, many of which were highly personal. By some reports, in the first week after the 2000 mailing, the Census Bureau received over half a million calls, most of which complained about the length and intrusiveness of the questionnaire.

This year the long form has been eliminated. There are only ten questions. The comparative brevity does not reflect a new government respect for privacy, but merely a shift in strategy.  The decennial census data are now supplemented by the American Community Survey (ACS), which is distributed yearly to select households.

Nevertheless, many people consider the 2010 form to be a violation of privacy. For example, one question asks, “Is this house, apartment or mobile home owned by you or someone in the house with a mortgage? Owned free and clear? Rented? Occupied without payment of rent?”

Other than privacy, what other objections commonly arise?

Original Intent

One objection is constitutional. The Census Bureau draws on constitutional authority but the questions have little connection with the original intention, which was to apportion representatives and direct taxes. Critics ask why, then, does the government needs to know if they rent or own. They claim the census is not an expression of the Constitution but the creation of a bloated government abusing a limited mandate.

Certainly the history of the census is one of “mission drift.” The first census (1790) consisted of six questions: the name of the head of the family and the number of people in the household broken down into free white males 16 or older, free white males under 16, free white females, and slaves. By contrast the 2010 form demands information on race and ethnicity, the relationship of occupants and how much is owed on mortgages.

How did the census evolve into a vehicle for social engineering?

Starting in the nineteenth century statisticians urged the federal government to expand the type of data collected. Since then the census has been used more and more to facilitate government goals that far exceed apportionment. For example, both sides of the Civil War used the 1860 census to plan military strategy. When Union General William Tecumseh Sherman made his notorious “scorched earth” march through Georgia, he used census data to locate the farms he looted for provisions. During World War I the Justice Department used census data to locate males within a certain age-range who had not registered for the draft; during World War II the data were used to locate Japanese-Americans and target them for internment. More recently, the IRS has compared census data to privately purchased lists to detect tax evaders.

Local governments also scrutinize census data for their own purposes. In a Wall Street Journal column in 1989, “Honesty May Not Be Your Best Census Policy,” James Bovard explained that those responsible for building-code enforcement often used the data “to check compliance with zoning regulations” and to find violations such as “illegal two-family dwellings.

The government responds to privacy concerns by assuring the public that the data are confidential. “Wrongful disclosure” by employees carries a fine of up to $5,000 and/or a prison term up to five years. Other federal laws reinforce confidentiality protections, including the Confidential Statistical Efficiency Act and the Privacy Act. Confidentiality is “guaranteed” for 72 years.

Unfortunately, the government has a history of sharing specific data with enforcement agencies, especially during crises. Government assurances can have a short shelf life. The original Social Security cards explicitly stated that they were not for identification purposes. Yet today the number is virtually a national I.D without which you cannot so much as open a bank account. The government is constructing a huge national database with the goal of including detailed racial, age, financial, medical, educational, and relationship information on every American. It is naive to assume that bureaucrats can resist the temptation of dipping into the rich information on census forms.

The government predominantly uses one argument to elicit compliance, which the Census Bureau website states clearly: “Each question helps to determine how more than $400 billion will be allocated to communities across the country.” The money will be used to fund hospitals, job training centers, schools, senior centers, emergency services, and public-works projects.

In other words, tax money will be doled back to communities based on how many residents return the form. An October Newsweek article, “Census Maps Out Strategy to Snare Elusive,” quoted a census official on the effect of promised entitlements and peer pressure on potential noncomplier: “What helps persuade the cynical to participate is stressing the count’s benefits for their children, such as planning for schools and hospitals.” And, if the “cynic” has no children or is willing to waive personal benefits to maintain privacy, he is reminded that noncompliance “steals” from his neighbors and their children. Thus exercising his right to privacy is said to deprive his community of benefits and the neighborhood kids of a good education. Compliance has been converted into a civic duty.

Social Control

Several years ago I discussed the Canadian census with a neighbor after she had signed up to be a census taker. Like many rural women, she is proudly independent and openly suspicious of authority, especially of government “suits” and bean-counters. I asked what she would do if a neighbor refused to answer her questions. “I’d report them to my boss,” she replied without hesitation. When I frowned in disapproval, she indignantly protested against people who refused to pull their weight in the community by answering “some simple questions.”

Note the political sleight-of-hand. My neighbor would never trespass on my property or steal vegetables from my garden. But she would turn me in to the authorities for not answering questions. Instead of the “natural harmony of interests” that comes from all people minding their own business, the census establishes a situation in which everyone is encouraged to police everyone else at the behest of the State; indeed, many are paid to do so.

The census in a welfare state, then, creates a dynamic in which the exercise of one person’s rights ostensibly damages the interests others. It thus has become a powerful symbol of social control over civil society.