"The war against illegal plunder has been fought since the beginning of the world. But how is... legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime. Then abolish this law without delay ... If such a law is not abolished immediately it will spread, multiply and develop into a system." ~ Frederic Bastiat
Exclusive to STR
July 16, 2008
The 4th of July that recently passed was, as usual, a mixed bag for me. It was one of my favorite days of the year as a kid. I've loved fireworks and explosions ever since I was young--my friend next door had a massive stockpile of illegal fireworks when I was growing up; frankly, it's a miracle I reached adulthood with two eyes and ten fingers. As I've grown older, however, I've come to find the day increasingly melancholy and hollow. As is often the case, I spent part of the day wondering, what went wrong?
How did we reach the point of having the megastate we have today? People will often argue that America is freer because equal legal rights have been extended to women and non-whites. That's good to the extent it's true. What's left out of that is how much less that equality means today in many ways. We've greatly expanded the number of people who are entitled to the full rights of a citizen, but the full rights of a citizen are in many ways a mutilated remnant of what they were. Why? The 4th of July gained a greater poignancy for me when I realized it was commemorating not just a hope that had failed, but one that never could have been.
Some would point to the existence of flaws or loopholes in the U.S. Constitution, and there is something to that. One major issue is that the writers and supporters of the Constitution were badly mistaken on certain fundamental issues of how large-scale republican governments actually work. Now, they didn't have a whole lot of previous continent-spanning federal republics to draw lessons from, and it's not fair to blame people in the 18th Century for not being up to date on Public Choice theory. Still, while you can say they had no way of knowing better, on many of these issues there were Anti-Federalists who did know better.
Reading the debates between the Federalists and the Anti-Federalists is fascinating. The Anti-Federalists, who we are today generally taught to consider fools and paranoiacs, make all sorts of eerily accurate predictions on the effects of adopting the Constitution; indeed, when they err, it is usually because they are not pessimistic enough. The Federalists' response often seems to be to blithely insist that no, of course the government won't be able to do the things the Anti-Federalists are warning about, because we'll have a piece of paper telling the government not to. More concrete explanations of why the Constitution would work as advertised fare little better: the celebrated Federalist 10, in which James Madison explains why the exploitation of the general public by 'factions' (special interests) will not be a problem under the Constitution, must surely rank among one of the most badly botched predictions in American history.
The problem runs deeper than that, however, to the very idea of constitutionally limited government. Generally speaking, for all their healthy distrust of power-seekers, I think the supporters of the Constitution just didn't appreciate how clever people can be at twisting words. They recognized that the world is full of ambitious, greedy, tyrannical, or just plain wicked men, and they saw that it was desirable for the government as a whole and its constituent offices to have their power checked, and so they created a governmental structure and legal limitations to provide those checks. However, having created a set of rules that would keep each player within his proper place, they often seemed to assume that the players would henceforth continue using those rules. People might try to break them, but the constitutional structure would assist everyone else in bringing would-be usurpers into line.
They didn't seem to much anticipate people subverting the constitutional framework itself in the way it has happened historically: that the Supreme Court would declare growing food on your own land for your own consumption to be commerce 'among the several states,' that vast hordes of sophists would insist that 'the right of the people to keep and bear arms, shall not be infringed' is a reference to the National Guard (established in 1903), that the power to take property for 'public use' would encompass seizing people's homes so that multibillion dollar corporations can have a more profitable store location, that the existence of the words 'general welfare' would be taken to mean that the government could do anything whatsoever that is not expressly forbidden by the Constitution, or that the 10th Amendment would just sort of vanish. The supporters of the Constitution understood and feared human ambition, but badly underrated human cleverness.
While the Framers can be blamed for creating a document with so many weak points for would-be usurpers to chip away at, I do not think their particular mistakes in constitutional design were a necessary condition for the growth of the American Leviathan. Indeed, I don't think any mistakes are necessary. There were a number of things that led me from minarchist constitutionalism to anarchocapitalism--moral arguments, reading works about the possible functioning of things like private defense firms, the government's utter failure in what is supposedly its most fundamental function on 9/11--but one big one was the conclusion that no constitutional framework is adequate to restrain the state. The Framers could have done everything right, and they still would have failed. Limited government is not a viable long-term solution.
There will always be government officials who want more power and influence, ideologues seeking to dominate others, private interests seeking to enrich themselves through privilege, and sophists to give weapons to all three. And as long as there is a state to gain control of, they will always succeed--in the presence of a monopoly government, the natural inclinations of opinion-makers, the incentives facing potential exploiters versus those faced by the productive masses of people, and the psychological baggage of a species that evolved as subsistence hunter-gatherers in small kin groups all work against the goal of keeping a state constrained. The anarchist vs. minarchist debate among libertarians often focuses on whether anarchocapitalism would be stable; it's a question that minarchists, and anyone who supports a government of strictly limited powers, should ask of their own system more often. It is not the anarchist who is guilty of wishful thinking. Those who believer that a single institution can be given a monopoly on force, the right to be the judge in cases against itself, and the sole right to interpret the laws binding itself, and then be expected to behave because of a piece of paper--they are the ones indulging in utopian fantasies.