Freeman Essay #24: “What is the American Constitution?”

by Don Boudreaux on January 3, 2018

in Freeman, Law, Legal Issues

In the July 1998 issue of the Freeman I argued that, ultimately, the constitution of any society is what the prevailing ideology of the members of that society make it out to be.  I did not in this essay distinguish as carefully as I should have between a constitution considered as a document establishing a government and a constitution considered as the foundational law of the society.  In my defense, too few people draw this important distinction.  My essay is below the fold.

This is the essential element of all government: force, used with general consent.

– Rose Wilder Lane, The Discovery of Freedom

What is the American constitution? The obvious answer is that it s the document written in 1787, amended 27 times since, and the original of which is housed in the National Archives. Judges, politicians, the news media—indeed, all Americans—talk of that 6,000+ word document as being the constitution.

This talk is mistaken. The constitution is neither a document nor the collection of words in a document. Instead, the constitution is the dominant ideology within us – an ideology that determines what we permit each other to do, as well as what we permit government to do. No words on parchment, regardless of the pedigree of that parchment or of the men and women who composed those words, will ever override the prevailing belief system of the people who form a polity.

We have at hand ready proof that the constitution is ideology rather than words in a document. Read the document popularly called “the Constitution” and ask if it accurately describes the law of the land. Your answer will almost certainly be no. That document clearly gives to the national government only very limited powers – for example, to coin money, to operate post offices, and to supply national-defense services. Today, however, Washington knows almost no restraints on how deeply its regulatory arms reach into the lives of American citizens. No species of economic regulation is off-limits to the national government. Likewise, Washington routinely and without a whiff of apology exercises governmental powers clearly intended by the framers of the Constitutional document to be reserved to each state.

It’s true that some provisions in the Constitutional document are respected. If Congress today passed a statute outlawing publication of Cosmopolitan magazine, a sufficiently large number of Americans would resist this attempt by government to control what is printed. But the fact that some parts of the Constitutional document have some teeth doesn’t mean that the document itself is “the law of the land.”

Those instances in which the Constitutional document has teeth (such as the First Amendment’s prohibition of government interference with the press) are those instances in which the prevailing ideology of the American people happens to correspond with what’s written in the Constitutional document. But in those many instances where the prevailing ideology runs counter to the text of the Constitutional document, the document is toothless.

Again, the American Constitution is nothing more or less than Americans’ prevailing ideology. And this ideology — as any ideology – comes from ideas about what is proper and improper, acceptable and unacceptable, desirable and undesirable, practical and impractical, noble and ignoble.

Most Americans today have the idea that Congress is perfectly justified in delegating its legislative authority to federal agencies. Therefore, despite the complete lack of any language in the Constitutional document authorizing independent agencies, Washington is planted thick with federal agencies exercising legislative powers. No one today suggests that these agencies are unconstitutional.

Most Americans today have the idea that the national government is authorized to dictate the details — from gasoline mileage to the number of airbags per vehicle – of how automobiles are to be manufactured. Despite the Constitutional document very clearly not giving authority over such matters to Washington, the national government exercises such authority and almost no one today regards this exercise of authority as unconstitutional.

Most Americans today accept the idea that government should tell people what they can or cannot ingest. Most Americans accept the idea that minimum-wage legislation is desirable. Most Americans accept the idea that protecting property rights is less noble than protecting plant and animal species.

Thousands more such examples can be listed.

In the past, when I got furious at the government for doing things clearly prohibited by the Constitutional document, I would declare “That’s unconstitutional!”

I was wrong. Those innumerable government actions that are at odds with the Constitutional document as well as with the principles of a free society are in fact constitutional. These actions are constitutional because the constitution is the actual legal framework of our society — and the actual legal framework in America today grants to government extraordinarily vast powers for intruding into the lives of peaceful people.

Again, the reason is that most Americans today have the idea that it is desirable, or at least not inappropriate, for government to exercise an authority immensely larger than was contemplated by Americans of the founding generation. If, instead, today’s Americans had the idea that government’s only legitimate function was to keep the peace, there could be no doubt that politicians who attempted to enforce, say, the Americans With Disabilities Act would get nowhere. It’s not so much that these politicians would get voted from office; instead, ordinary people would simply refuse to comply with the statute.

If you doubt this, ask what would happen if Congress enacted legislation banning interstate travel by Americans. Can you imagine Americans today respecting such an odious statute? Of course not, despite the fact that the Constitutional document does not explicitly prevent Congress from passing such legislation. To avoid enforcement of this statute we wouldn’t have to wait to throw from office the bums who enacted it. Because of the prevailing American ideology, which is hostile to such legislation, this statute would be a nullity from the moment the President signed it.

It follows that ideas matter enormously. Ideas, not words, are the principal ingredient of the American constitution. If ideas change, so does the constitution. And the only way really to change the constitution is to change the ideas accepted by the great swath of citizens.

We at FEE are in the business of constitutional amendment – changing the ideas that people have about freedom, about property, about politics, and about government. If we succeed in restoring the idea that free people are more prosperous, peaceful, and culturally vigorous than are those who rely on government, we will have done nothing less than to amend the American constitution in a way that secures liberty. We will also have re-created the Constitution that James Madison and other founding-era Americans intended.

Liberty cannot be secured by asking its foe – the state – for more respect. Liberty cannot be secured at ballot boxes or in courtrooms. Liberty must reside in the hearts of people if it is to reign. And the only way that liberty can find its way into the hearts of people is through the promulgation and circulation of the ideas of liberty. In these ideas lies liberty’s only hope.


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