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The Constitution: Liberties of the People and Powers of
Government, Part 2
by Jacob G. Hornberger, September 2000
In 1787, the
Constitution of the
United States called into existence the federal government. What was
significant, however, was that it was a government whose powers were
expressly limited by the people.
Throughout history, government
officials had exercised omnipotent power over their citizenry. Of course,
there had been some exceptions, such as Magna Carta in 1215, when the
great barons of England had extracted, at the point of a sword, an
admission from King John that his powers were limited. But by and large,
it was commonly accepted all over the world that people’s lives and
fortunes were unconditionally subject to the commands of their
government officials.
Thus, the U.S. Constitution was a
terribly shocking document, especially to rulers all over the world.
Because here were a people who were placing themselves in the role of
master and placing government in the role of servant. In other words, in
one fell swoop, the American people had inverted the historical
relationship between citizen and government.
But there was a logic behind their
actions. Think back to the Declaration of Independence. Expressing the
commonly held sentiments of the people in that document, Thomas
Jefferson had said that man has been endowed by his Creator with certain
unalienable rights and that governments are instituted to protect those
rights.
That was why the people of the United
States called into existence a federal government — to protect
rights that preexisted the government they were calling into existence.
Notice that they could have called
into existence a government that had omnipotent powers over the
citizenry. They didn’t do that. After all, that was the nature of the
government they had recently rebelled against.
Instead, they created a government
whose powers were limited to those enumerated in a document. It was the
first time in history that people had had the audacity to limit the powers
of their own governmental officials.
For example, Article 1, Section 8,
sets forth the powers of Congress. Whether you believe that all of these
enumerated powers are proper or not, one fact is indisputable: that the
powers of Congress were indeed limited. In other words, if the powers of
Congress were unlimited, there would have been no reason to enumerate
specific powers. By listing the specific powers, the Founders made it
clear that the federal government’s powers over the people were
not omnipotent.
To clarify matters even more, the
Founders enumerated specific restrictions on the powers of both the
federal and state governments. See, for example, Article 1, Sections 9 and
10, and notice the number of times that the words “no” and
“not” are used.
It is important to note, then, that the
Constitution in no way grants rights to the people, as U.S. government
officials often claim. Remember, rights preexist government. The
Constitution, by its very nature, is a limitation and restriction on
governmental power, not the giving of rights to the people.
There were many Americans who
objected to the Constitution because it didn’t provide for even more
express restrictions on the power of the federal government to interfere
with the rights of the people. For example, there was no express
prohibition against the government’s regulation of religion, speech,
press, and assembly. There was nothing guaranteeing the right to own
weapons. What would protect people from arbitrary confiscations of their
property? What about due process of law and unreasonable searches and
seizures?
The proponents of the Constitution
responded that there was no need for express prohibitions on such
governmental powers. Since the Constitution expressly enumerates the
powers of the federal government, they argued, if a power is not
enumerated, it cannot be exercised. Since the power to regulate speech,
for example, was not among those listed, government officials would not
be permitted to regulate speech.
The Bill of Rights
But the American people living in
1787 did not trust government officials, not even those who were
democratically elected, including the likes of George Washington, Thomas
Jefferson, James Madison, and John Adams. (If you couldn’t trust
those men with political power, whom could you trust?) As a condition of
approving the establishing of the federal government, the American people
demanded the passage of the so-called Bill of Rights, the first ten
amendments to the Constitution.
Actually a much more appropriate
name would have been the Bill of Prohibitions. Why? Because the Bill of
Rights does not grant rights at all. Remember: rights don’t come
from government; they preexist government. The Bill of Rights is actually
an enumeration of restrictions on governmental power.
For example, the First Amendment
doesn’t say, “People have the right to practice religion or
not, as they see fit.” Instead it says, “Congress shall make no
law respecting the establishment of religion, or prohibiting the free
exercise thereof.” In other words, the right to worship or not
preexists government, and the American people were simply confirming
that their newly established government did not have the power to
interfere with this fundamental, inherent right of man.
Once again, the first ten amendments
are riddled with the words “no” and “not,”
reflecting people’s clear understanding that the Constitution was
not a grant of rights but rather restrictions on the powers of their
government.
Those who opposed the passage of the
Bill of Rights argued that since the Constitution called into existence a
government whose powers were expressly limited to those in the
Constitution, not only was it unnecessary to list restrictions on the power
of government to interfere with specified rights, it was actually
dangerous to do so. The danger was that by specifying restrictions on
some fundamental, preexisting rights (e.g., religious and intellectual
liberty), government officials might later claim that they could interfere
with rights that that were not specified.
The argument partially failed and
partially succeeded. It failed to stop the passage of the first eight
amendments, but it ensured the passage of the Ninth Amendment:
“The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people,” and
the Tenth Amendment: “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”
The most unusual society in
history
The Declaration of Independence and
the Constitution integrated the most radical, revolutionary ideas on
liberty that the world has ever known. For the first time in history, people
had assumed the role of master and relegated government to a role of
subservience. Recalling the dictum in the Declaration that whenever
government becomes destructive of the rights of the people, it shall be
the right of the people to alter or abolish it, the Constitution also
provided a means by which people could alter or even abolish their own
government.
The Constitution was the most
unusual political experiment in history. Equally important, all these
limitations on the powers of government officials also had unforeseen
consequences on American society, consequences that shocked
governments and citizens all over the world.
After all, keep in mind that
throughout history, governments had used their omnipotent powers over
their citizenry to regulate their lives and activities and to plunder their
money and property. A government had now come into existence that
didn’t have such powers because the citizenry had not permitted it.
Imagine the consternation all over the
world when people discovered that in America, there was little or no
taxation, economic regulation, or government welfare for the poor. In fact,
the only people who were “taken care of” were the slaves!
You can praise. You can condemn. But
what you can’t deny is: By implementing the most unusual political
experiment in history, the result was the most unusual society in history.
Ironically, as people around the world
heard about this strange society, they began fleeing the lands of
government regulation and welfare and coming to the land where there
were no guarantees. And most of those people were poor! Yes, the poor
were voting with their feet, fleeing the mercantilist, regulated welfare
states of Europe and elsewhere to come to the land of unbridled, dog-eat-
dog capitalism.
And it was the poor who benefited the
most from this unusual society. Families went from rags to riches in one,
two, or three generations. Real wage rates for the average working person
skyrocketed, especially after the Civil War. When people were free to open
businesses without restriction and to accumulate wealth without the
threat of confiscation, the ever-rising accumulation of capital benefited
everyone. For the first time in history, both adults and children had a real
chance not only to survive but actually to prosper.
It is impossible to overstate the
significance of the ideas that were expressed in 1776 and then put into
practice in 1787. For the first time ever, people expressly limited the
powers of their own government officials. For most Americans, the result
was a life of the greatest amount of individual freedom that mankind had
ever experienced. And with liberty came the fruits of economic prosperity.
Mr. Hornberger is founder and president of The Future of Freedom Foundation.
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