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Why I Favor Limited Government, Part 6

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Throughout history, people have accepted the notion that government officials have the legitimate moral and legal authority to do whatever they want. The mindset has always been that government is in charge and people are subordinate. The result was governments that wielded omnipotent powers over their citizenry. The best that people could hope for was that the powers would be wielded in a benevolent way.

Then came the U.S. Constitution, which upended that centuries-long mindset. Through that document, the American people called a national government into existence that was subordinate to the will of the people. By the express terms of the document itself, government officials were told what their powers were. If a power wasn’t enumerated, the government was not permitted to exercise it.

Americans today take the Constitution for granted, but it is impossible to overstate the shocking effect that it had on the world at the time it was enacted. Just think: Rather than a government’s being in charge with omnipotent powers, people were in charge and told the government what it could and could not do. That was a shocking notion to the people of the world.

It didn’t have to be that way. The Constitutional Convention could have done something completely different — something that would have been consistent with what had gone on before. The Convention could have proposed simply calling into existence the same type of government that had existed in nations throughout history — a government whose officials wielded general powers to do whatever they felt was in the best interests of the nation. They could have simply trusted their public officials to do the right thing, with no limitations placed on their powers. And after all, everyone knew that George Washington was going to be the first president. If you couldn’t trust George Washington with omnipotent powers, whom could you trust?

The Framers didn’t trust anyone with political power and neither did the American people. That’s why they called into existence a federal government with limited, enumerated powers.

It’s also why they divided government into three branches. Having a keen insight into human nature, they knew that public officials in separate branches would tend to fight against each other as part of their incessant quest for more power over the lives of human beings. It’s also why they favored a federal system — that is, one in which there were a federal government and state governments (rather than one national government).

Even all that wasn’t good enough for the American people. As a condition of accepting the new federal government, which was replacing the government that had been established under the Articles of Confederation, they demanded the enactment of a bill of rights, which placed express restraints on the powers of federal officials, including procedural limitations on power that the British people had carved out during centuries of resistance to the tyranny of their own government.

The obvious question arises: Given so much distrust in government, why even call into existence a national government?

The answer essentially lay in the three core functions of government set forth in part one of this essay: (1) to declare a state of war and defend the nation in the event of a military attack or invasion; (2) to establish a federal judiciary to enable people to peacefully litigate differences in disputes that extended beyond the strict borders of a state, such as lawsuits between citizens of different states or lawsuits between states; and (3) to enact and enforce criminal laws in rare matters relating to federal powers, such as counterfeiting.

Since the nation was at peace most of the time in the eighteenth and nineteenth centuries, and since the number of federal lawsuits was extremely small, and since virtually all the traditional criminal offenses (e.g., murder and robbery) were prosecuted at the state level, federal expenditures were necessarily extremely low during most of that time. That’s what enabled our American ancestors to live without income taxation for more than 125 years.

Was the Constitution perfectly written? Of course not. Crafted in an environment of political compromise and a lack of deep economic understanding, it is riddled with imprecise language and delegation of powers to which any libertarian today would object.

The Interstate Commerce Clause comes to mind. Why not simply prohibit the federal government from regulating any commerce?

Or the power to coin money. Why not a free-market monetary system, one in which the federal government plays no role whatsoever?

Or the power to deliver the mail. What should government at any level be engaged in the mail-delivery service?

Indeed, why wasn’t there an express protection of economic liberty or freedom of trade in the First Amendment, right alongside freedom of speech, religion, and press?

A glass half full

But that’s looking at the glass as half empty. When we look at the Constitution from the standpoint of a glass that is half full, we see that it is one of the most remarkable political documents in history. Keep in mind, after all, what had existed throughout the ages: governments with omnipotent powers and people who never thought to question or challenge the fact that their governments wielded omnipotent powers over them. Here was a document that placed the people on top and made the federal government subservient to their will.

As a point of comparison, consider Adam Smith’s Wealth of Nations, which was published in 1776. Its verbiage is turgid and, even worse, the book is riddled with economic errors and compromises of libertarian philosophy. It would not be difficult to conclude, in a strictly libertarian or Austrian-economics sense, that The Wealth of Nations, like the Constitution, is a highly imperfect work.

But that would be missing the point. Looking at the glass as half full, despite its difficult writing style and its errors and compromises, we libertarians praise Smith’s Wealth of Nations as a glorious and monumental achievement, especially since it was the first organized treatise on economics, thereby establishing the foundation on which later economists would expand and build.

Was the society that existed under the federal government a perfectly libertarian society? We all know it wasn’t. There was slavery. There were tariffs. There were land grants to the railroads. There were various economic regulations at the state and local levels. There was corporatism.

Once again, however, that’s looking at the glass as half empty. Consider the other side of things: Our ancestors brought into existence a society in which there was no income tax or IRS, one where people could keep everything they earned and decide for themselves what to do with it. There was no Social Security, Medicare, Medicaid, farm subsidies, education grants, food stamps, public housing, or FDIC. Indeed, there was no welfare state or mandatory, coercive charity. There were no drug laws. There were very few economic regulations, especially at the federal level. No minimum-wage laws. No occupational-licensure laws. No Federal Reserve. No fiat money: the official U.S. money consisted of coins made out of precious metals. No immigration controls. No public (i.e., government) schooling. No national-security state. America had a relatively small army that was nothing like the enormous military establishment and military-industrial complex that exist today. No foreign military bases. No regime-change operations, coups, foreign interventions, foreign aid, or alliances with foreign regimes. No CIA. No NSA. No official programs for mass surveillance, torture, and assassination.

That is the most remarkable political and economic achievement in history. Never in history has there existed such a society. It was the closest that people have ever come to what libertarians envision as a genuinely free society. Notwithstanding the exceptions (e.g., slavery and tariffs), the result was the freest and most prosperous nation in history and certainly among the most peaceful and harmonious for most of the time (the Civil War, the Mexican War, slavery, and the war against American Indians being notable exceptions).

The survival of limited government

Today, we obviously live in a very different type of society, one that has all those government programs that our ancestors didn’t have. For most of the 20th century and continuing through today, we live under what has become known as a welfare state and a warfare state, where the federal government wields omnipotent power over the lives and economic activities of the citizenry.

Anarchists point to this phenomenon and say, “You see, limited government didn’t work. It failed to prevent the destruction of freedom in America.”

Yet, clearly that’s just not the case. Compare the United States to, say, North Korea, which really does have omnipotent government. Here in America, people can criticize the government and public officials and not be rounded up, jailed, and executed, as they are in North Korea. Unlike North Koreans, Americans are free to worship in their own way or they can choose not to worship. They can read or write whatever they want, including books promoting communism, anarchy, and even the overthrow of the government. They are free to own guns, a fundamental right that Americans have widely exercised. Except in cases involving terrorism, which involves the warfare state, federal officials do not simply seize and disappear people. Trial by jury still exists for almost all crimes.

The same is true on the state and local level. After the passage of more than 235 years, every state continues to have a republican form of government. While there have been plenty of instances of corruption at the local level, the fact is that no city government in America has ever become a totalitarian city, one in which the police are arbitrarily rounding people up, incarcerating them without charges, and executing them.

Anarchists often compare government to cancer. They say that limited government is inherently defective because as soon as people bring government into existence, it immediately begins metastasizing, until it inevitably and finally becomes a totalitarian state.

Yet, clearly that has not happened in the United States. Limited government in many respects still exists all across America, a phenomenon that anarchists themselves believe and promote, even if they don’t realize it.

Consider, for example, the initiatives in various states whereby citizens amended their constitutions by legalizing marijuana. Prior to the constitutional amendment, state governments were jailing people for possessing marijuana. At the moment that the constitutional amendment became effective, state officials stopped jailing people for possessing marijuana.

That is limited government in action. It didn’t have to be that way. State officials could have ordered the police to simply ignore the constitutional amendment and to continue arresting and jailing people for marijuana violations. They could have said that they weren’t even going to hold trials anymore and that they would place their trust in the judgment of police officers. That’s what omnipotent government is all about. They didn’t do that. State officials complied with the constitutional amendment, the higher law that people use to limit the power of their public officials.

Why do I say that anarchists implicitly believe in and promote limited government? Because when they criticize wrongful government policies, they also advocate limited-government measures — that is, measures that fall short of the total abolition of the government. For example, one often finds anarchists calling for drug legalization as a solution to the horrors brought on by drug laws. When they do so, they are implicitly saying that if drug laws were repealed, public officials would no longer jail people for drug violations. In other words, limited government.

The same holds true for education. Anarchists often call for a “separation of school and state,” much as the First Amendment requires a separation of church and state. That’s an implicit acknowledgement that if laws entailing mandatory school attendance and school taxes were repealed, state officials would immediately stop forcing people to send their children to school and stop collecting school taxes, just as they don’t force people to go to church. That is limited government in action.

Consider the repeal of Prohibition, a constitutional amendment that anarchists regard with approval. The day it was repealed by constitutional amendment, federal officials stopped busting people for liquor violations. That’s how limited government works.

The tsunami

The natural question arises: If limited government worked, then why is The Future of Freedom Foundation in existence? Why have we steadfastly continued to maintain for 27 years that we don’t live in a free society? Why do we continue to fight to achieve a free society?

The answer lies in the two primary areas in which limited government failed to work: the welfare state and the warfare state — that is, in the areas of economic activity and foreign policy. By welfare state, I include all the socialist, interventionist, and paternalistic roles that government has assumed in American life, including Social Security, Medicare, subsidies, economic regulations, fiat money, income taxation, the Federal Reserve, minimum-wage laws, the drug war, immigration controls, trade restrictions, corporatism, licensure, and much more. By warfare state, I mean the entire Cold War-era national-security establishment, military-industrial complex, Pentagon, CIA, NSA, foreign military bases, foreign interventionism, regime-change operations, coups, partnerships and alliances with foreign regimes (including totalitarian ones), and formalized programs of torture and assassination.

Notwithstanding the freedom people have with respect to what they read and write, whether they worship God or not, their ownership of guns, and other aspects of freedom that people in totalitarian societies aren’t free to exercise, the fact is that the welfare state and the warfare-state have succeeded in destroying the freedom and well-being of the American people.

Doesn’t that then mean that the anarchists are right — that the Constitution failed to ensure limited government and, therefore, that limited government was an inherently flawed concept from the inception?

The answer is: No! That’s because the Constitution was never designed or intended to protect us from the forces that brought the welfare-warfare-state way of life to America.

Consider a sea wall. Its purpose is to protect a community from a high tide. Let’s say that for 100 years, it succeeds in keeping society high and dry from waves that get as high as 10 feet. One day though, a tsunami hits, with waves that are 100 feet high. The flood waters easily overwhelm the sea wall and engulf the community.

Can we say that the sea wall failed to protect the community? Of course not, because it was never intended to protect the community from a tsunami. Its purpose was to protect the community only from high tides, which it succeeded in doing for more than a century. Should the community erect a new sea wall, notwithstanding its failure to protect against the tsunami? Of course it should, in order to continue providing protection against ordinary high tides.

That’s what happened with the Constitution. For more than a century, it stood as a barrier to the welfare-warfare state but through most of that time there weren’t any high intellectual tides against the free-market, private-property-limited-government system. Most 19th-century Americans favored the founding principles of the country. Those who opposed it during the 19th century constituted a very low intellectual tide.

Then came the Progressives, with their ideas of socialism, interventionism, and imperialism. Drawing on socialist ideas developed in Europe, Progressives began advocating Social Security, government health care, public schooling, and such interventionist ideas as minimum-wage laws and maximum-hours laws. As the 20th century dawned, their statist philosophy was gripping the hearts and minds of more and more Americans. It was clearly a rising tide, but one that the Constitution could still protect the country against.

For example, in 1905 the U.S. Supreme Court was faced with a New York state law that mandated the maximum number of hours that employees were permitted to work, which, of course, was a direct violation of the principles of free enterprise — that is, enterprise that is free of government interference. Although the enactment of the law reflected majority opinion, at least in New York, in Lochner v. New York the Court declared it unconstitutional. The sea wall was able to withstand that particular shift in public opinion toward economic statism.

In 1923, the Supreme Court was faced with a minimum-wage law that had been enacted in Washington, D.C. The sea wall held when the Court declared the law unconstitutional in the case of Adkins v. Children’s Hospital.

But the intellectual tide in favor of economic statism continued to rise. For a time, there were justices who succeeded in shoring up the sea wall, as reflected, for example, by the Court’s declaration of unconstitutionality for Franklin Roosevelt’s National Recovery Act, a program that was so alien to American principles of economic liberty that it would have fit perfectly in Benito Mussolini’s fascist Italy.

As the 1930s progressed and the Great Depression worsened, public opinion in favor of socialism and interventionism became an intellectual tsunami, ultimately flooding the Constitution and all three branches of the federal government to such a large extent that America’s economic system became permanently altered. The tsunami ended up bringing a permanent shift to the Supreme Court, as reflected by the 1937 case of West Coast Hotel v. Parrish, which overruled the Adkins case and upheld the constitutionality of the minimum wage. Once retiring justices were replaced by justices whose progressive mindset reflected most of the rest of American society, the shift became permanent.

Then a second tsunami hit, this one with respect to foreign policy. While the move toward a warfare state had been building with the Spanish-American War and World War I, there was still a strong anti-empire, anti-interventionist sentiment in the country leading up to World War II. That all changed with the Second World War. By the end of the war, the overwhelming mindset was in favor of converting the federal government to a national-security state, a type of governmental system that characterized totalitarian regimes. It consists of such things as an enormous permanent military establishment, foreign military bases, the CIA, the NSA, foreign wars, foreign interventions, foreign aid, regime-change operations, secret surveillance schemes, assassinations, torture, foreign aid, and alliances with foreign regimes, including brutal dictatorships. That monumental change in America’s federal governmental system was emphasized by President Dwight Eisenhower in his Farewell Address in 1961, where he pointed out that this new system, which he called the “military-industrial complex,” posed a grave threat to the freedom and democratic processes of the American people.

The Constitution never had a chance against those two statist tsunamis that hit America in the 20th century. But neither would a system based on anarchy. If, say, 98 percent of people living under anarchy decided that they wanted to live under a government, there is nothing in anarchy that would prevent that from occurring. After all, while anarchists sometimes chide limited-government libertarians over the fact that limited government worked for “only” 125 years, anarchy in the Wild West lasted only a few years, precisely because the overwhelming majority of people rejected it in favor of government.

The Constitution was designed to protect people against “ordinary” majority attempts to infringe on freedom — when a “high tide” consists of say, 60-75 percent. For example, the majority of 20th-century and 21st-century Americans have long supported prayer in public schools, a system that would undoubtedly open the floodgates to mandatory religious indoctrination of all children in the land. But the Supreme Court has declared prayer in public schools to be unconstitutional, much to the chagrin of the majority of Americans who favor it. But what if public sentiment in favor of prayer in public schools reached, say, 98 percent? Then all bets would be off. The likelihood is that an intellectual tsunami of that magnitude would bring about a shift toward prayer in public schools, if for no other reason than justices who favored such a law would be appointed to replace retiring or dying justices.

Rebuilding the sea wall

What is the solution to the welfare-warfare state that holds our nation in its grip? Education! That’s what The Future of Freedom Foundation is all about. For 27 years, FFF has been educating people about the principles of a genuinely free society, including challenging them to ask the following critically important question: What should be the role of government in a free society? As people begin to realize that government has no legitimate role in such things as charity, drug use, education, economic activity, and disputes in other countries, then the tide in favor of statism will begin to recede and laws will start getting repealed. We are already seeing a major shift toward a free society with respect to the drug war, as reflected by people’s legalizing marijuana at the state level through constitutional amendment.

Ideally, when the shift comes, the U.S. Constitution would be amended to provide for a separation of charity and the state, of economy and the state, of drug use and the state, and education and the state, an abolition of the income tax and Federal Reserve System, and a dismantling of the Cold War-era national-security state apparatus that was grafted onto the federal governmental system after World War II. When that day comes, while there will always be attempts by public officials to break free of the chains that bind them, the sea wall of the Constitution will hold against high tides, just as it has held with respect to intellectual liberty, religious liberty, gun ownership, and trial by jury.

Why do I favor voluntarily funded limited government? Because it is the best, albeit imperfect, way to secure people’s fundamental, natural, God-given rights of life, liberty, and the pursuit of happiness.

Although I disagree with libertarian anarchists on this issue, I would be remiss if I failed to mention that the anarchists are among the libertarian movement’s most eloquent and passionate opponents of the welfare-warfare-state way of life. Unfortunately, all too many limited-government libertarians have made peace with the welfare-warfare-state and have decided to dedicate their lives to simply coming up with ways to reform it under the rubric of “freedom-oriented public-policy proposals.” Social Security “privatization”; health-care IRAs; school vouchers; income-tax reform; regulatory reform; and reform of the Pentagon, CIA, and NSA come to mind.

You’ll rarely see a libertarian anarchist promoting a “freedom-oriented public-policy proposal.” They understand that a warmed-over version of the welfare-warfare state is not freedom. In their articles and speeches, they invariably strike at the root of the welfare-warfare state, thereby challenging people to question the legitimacy of the programs themselves rather than debating the efficacy of some reform measure.

That’s why I have always felt much more intellectual kinship with libertarian anarchists, notwithstanding our disagreement over government, than with limited-government reform libertarians. With their uncompromising perspectives, the libertarian anarchists are bringing us ever closer to a free society.

I’ll conclude this six-part essay with what a libertarian anarchist friend of mine once said to me after countless hours of debate, discussion, and argumentation over the  issue of limited government versus anarchy: “Let’s call a truce. Let’s work to achieve freedom by getting down to the night-watchman state. At that point, we’ll decide whether or not to dismantle it.”

This article was originally published in the August 2016 edition of Future of Freedom.

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    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.