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Constitution Day


Leave it to the Los Angeles Times to inject a bit of humor into today’s celebration of Constitution Day. The humor comes in the form of an op-ed entitled “The Audacity of Democracy” by Akhil Reed Amar, which sets forth the notion that the enactment of the Constitution was a triumph for democracy.

Why is that funny?

Because Amar has it all wrong. The Constitution wasn’t a triumph for democracy but rather a triumph for limiting the powers of government, a principle that Amar doesn’t even mention in his op-ed.

The Framers feared democracy. They understood that democratic regimes can be just as tyrannical as non-democratic regimes.

Indeed, that was the idea behind the Bill of Rights, which Amar obviously does not understand. He says that “Americans fashioned a Bill of Rights to fix some of the bugs of Constitution 1.0. “

No, that’s not why Americans fashioned a Bill of Rights. They fashioned a Bill of Rights to protect themselves from the democratically elected president and Congress, along with their bureaucratic minions.

When the Constitution was proposed to the American people, it was not enthusiastically received. The document was calling into existence a new federal government to replace the weak central government under which

Americans had been living under the Articles of Confederation. From personal experience and from their understanding of history, people knew that a powerful federal government could pose a grave threat to their freedom and well-being.

That was the idea of enumerating the government’s powers within the Constitution. The defenders of the Constitution assured people that the document would not be calling into existence a government of unlimited powers, such as those that existed all over the world and throughout history. Instead, by the terms of its own charter, its powers would be limited to those enumerated within the document.

That’s the real significance of the Constitution — that for the first time in history, citizens were telling government officials what they could do and not do, rather than the other way around. That’s a point that obviously escapes Amar, given that he doesn’t even mention it in his article.

What the defenders of a new federal government were essentially saying to the American people is this: “We understand that you are concerned about the potential threat to your freedom and well-being posed by this new government that the Constitution is calling into existence. Governments have done horrific things to their own people for ages. They have jailed them, tortured them, and executed them. They have taxed and regulated them and debauched their currency. But you need not be concerned because this government’s powers will be limited to those enumerated within the Constitution. Since the powers to do the horrific things that governments throughout history have done to people are not enumerated within the Constitution, they simply cannot be exercised.”

The American people finally went along with the deal, but only on one condition — that a Bill of Rights be added immediately after the Constitution was enacted, which would provide express restrictions on the power of the government to infringe upon people’s rights.

The defenders of the Constitution tried to convince people that such a bill was unnecessary since the power to infringe on people’s rights was not among the enumerated powers within the Constitution. The people responded that the enumerated powers doctrine was not sufficient. They demanded a Bill of Rights as a condition for approving the Constitution. They wanted to be sure that there was no misunderstanding as to what the federal government was not permitted to do.

Carefully examine the First Amendment. Notice that it doesn’t give people such rights as freedom of speech, freedom of religion, and freedom of the press. Instead, it expressly prohibits Congress from infringing on such rights. That’s because, again, people were convinced that that is precisely what Congress would do given the right circumstances, such as a “crisis” or “emergency.” Obviously, the reason that people included Congress in the First Amendment is because they were convinced that Congress posed a severe threat to people’s freedom and well-being.

It’s the same thing with the Second Amendment. People knew that one of the things that governments inevitably do, especially during times of “crisis” or “emergency,” is confiscate people’s guns. The reason? To ensure that people cannot violently resist the horrific actions of government. Thus, even though the power to confiscate guns was not enumerated in the Constitution, the people wanted an express restriction on that power. They knew that without guns in the hands of the citizenry, the federal government would likely ignore the First Amendment and the entire Bill of Rights and the Constitution itself in the process of committing the horrific acts that governments throughout history had done to their own citizens.

The Fourth, Fifth, Sixth, and Eight Amendments were all designed to prevent the government from subjecting people to unreasonable searches, arbitrary arrests, indefinite detentions, torture, and punishment without due process of law and trial by jury. Why were those amendments included? Because our American ancestors were convinced that the federal government would end up doing these things to people even if the authority to do such things was not included within the enumerated powers of the Constitution. Thus, people demanded four separate amendments to expressly protect themselves from such acts at the hands of federal officials.

Unfortunately, Amar misses all of this. He thinks that the Constitution is a celebration of democracy, a word that isn’t even mentioned in the Constitution.

The Constitution and the Bill of Rights reflect the attempt by our American ancestors to protect themselves and succeeding generations of Americans from what they were convinced would prove to be the gravest threat to their freedom and well-being—their very own federal government.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.