Part of my college essays series: This is one of the essays I wrote during the political theory general exam for my PhD. The exam was an approximately 15-hour marathon session, involving 6 out of 12 essay questions, for a final total of 33 double-spaced pages written without access to any notes or sources.
In this essay I will address how the American framers conceived of liberty as well as how the Constitution they designed was supposed to secure it and whether it has in fact done so. Stating my conclusions right out, which I will then seek to explain and justify as best I can in the space and time allotted, I think that though the Constitution was a grand and very admirable attempt at securing liberty it was at the outset doomed to failure in the long run in large part due to inner contradictions and inadequate safeguards.
By and large the framers, and the American people in general, conceived of liberty in Lockean and republican terms. Locke’s influence was particularly prevalent owing largely to the influence of John Trenchard and Thomas Gordon’s Cato’s Letters, which popularized and enhanced the popularity of Lockean individual rights arguments. This is not to neglect the importance of republicanism and of Christianity; the framers in particular were steeped in republicanism, and Christianity was indeed a formative influence on the early Americans, particularly through the thousands of fiery political sermons of the day, many of which also employed Lockean rights language (such as Elisha Williams in particular, but also Jonathan Mayhew and John Allen).
However, liberalism and republicanism were in tension from the outset, and Christianity has been employed effectively in support of both sides. On the one hand, the sole justification and purpose of government is the protection of each and every individual’s rights to life, liberty, and property. Consistently applied this means that all morals legislation and economic regulation are unjust and invalid. On the other hand, republicans like Algernon Sidney and John Adams feared that liberty unrestrained will degenerate into license, that virtue ought to be promoted and/or required, and vice discouraged and/or prohibited, with the coercive and legal power of the state; and that republican or civic virtue is necessary and must be somehow enforced and inculcated in the people if liberty and the republic are to be sustained. While some liberals have and continue to deny the virtue of virtue, ethical neutrality or relativism is not an inherent feature of liberalism and many liberals do indeed hold and advocate firm moral convictions.
The Declaration of Independence explicitly used Lockean, common law, and republican language. The Constitution itself was an attempt to establish a government that would be responsive to the people, who are the sovereign(s), and limited to securing peace and order by protecting individual rights. It was difficult for the framers to be consistently liberal, however. The three-fifths compromise and related compromises legitimizing slavery in the Constitution came out of the Convention debates. The Anti-Federalists decried the lack of a Bill of Rights, and the Constitution was not ratified until the American people were satisfied that one would indeed be added. The ratification process itself was marred by chicanery and coercion in a number of instances, particularly Pennsylvania. Shays’s Rebellion and the Whiskey Rebellion serve as early examples that the state governments and the new national government installed by the Constitution, and those who lead them, left something to be desired in terms of the protection of liberty. From the outset there were attempts to fund public works at the taxpayers’ expense and regulate, tax, or prohibit various sorts of peaceful and voluntary activities.
Ultimately, I think that the Constitution gave the national government too much power. And I must agree with the Anti-Federalists, Thomas Paine, and the preferences of Thomas Jefferson for local democracy, that the United States started off too large territorially to be a constitutionally limited republic, and it continued to grow thereafter. Montesquieu, too, would have objected to a republic of such size, as even Rousseau would have. The fundamental inner contradiction of the state created by the US Constitution, however, and of all modern nation-states generally, is that it claims a territorial monopoly on the legal use of force and of ultimate decision-making. By its very nature then, the state, insofar as it attempts to enforce that monopoly, necessarily contradicts itself by violating the rights of any individuals who dissent. Tacit, implicit, or hypothetical consent cannot be assumed.1 As one might expect of such a monopoly, both from economic theory and human history, the political elites, plutocrats, and other special interests have never run out of opportunities and “prudential” reasons for expanding government power and extending government intervention at home and abroad.
The principle of separation of powers with checks and balances embodied in the Constitution was an ingenious modern, and very American, innovation and adaptation of the classical mixed republic to the American context. The classical mixed regime attempted to institutionalize competition between social classes as embodied by kingly, aristocratic, and democratic elements of a commonwealth. Lacking royalty and a nobility, and drawing upon distinctions made by Locke and Montesquieu between executive, legislative, and judicial powers, the US Constitution embodies the separation of these three powers more thoroughly than the constitution of England while mixing them somewhat in such a way that each branch would be led to check and balance the ambitions of the others. The arguments for this are laid out in the writings of Publius and John Adams. This constitutional separation of powers can be thought of as an attempt to simulate market competition; however, situated within the fundamentally monopolistic context of a state, this simulated market competition must theoretically and has historically proven to be inadequate to the task. The three national branches and the multiple federalist levels of government (national, state, local) have time and again found it in their interest and the interests of their constituents and political allies to compromise and cooperate in the expansion of government power at the expense of individual liberty.
The writings, speeches, and actions of Abraham Lincoln provide an eloquent illustration of this conflict between liberty and power. The so-called Civil War represents the death-blow of federalism, and only some seventy years after the ratification of the Constitution. While the war had the salutary effect of ending slavery (a reprehensible institution) in the South, this was neither Lincoln’s original intent nor even in the end his primary purpose. The United States is, to my knowledge (and excepting slave rebellions), the only country to end slavery primarily by means of violence and war; and all in the name of saving the Union. After the Civil War, the US government can no longer justifiably be said to rest upon the consent of the people, if it even could before.
From the late nineteenth century onward, Marxism and socialism began to increase in popularity first among the intellectuals and then the poor of America. America’s first (progressive) imperialist war was fought against Spain in the 1890’s under the leadership of McKinley. Progressivism picked up speed in both domestic and foreign policy with the social welfare policies and warfare socialism of Wilson and then FDR. Government social-welfare programs quickly crowded out the fraternal societies and other voluntary social-welfare associations that predominated in America (and England) in the nineteenth and earlier centuries. Tocqueville, in his Democracy in America, once glowingly reported on the peculiarly American independence and propensity to spontaneously form voluntary associations for whatever need arose, but that independence and propensity are gradually being eroded by a growing dependency upon the progressive welfare-warfare state. Appeals for a more classical liberal approach to politics by such thinkers as Henry David Thoreau (Civil Disobedience), Herbert Spencer (Social Statics), Albert J. Nock (Our Enemy, The State), William Graham Sumner, Randolph Bourne (“War is the Health of the State”) and others have largely gone unheeded. Both major parties and the general populace now support a welfare-warfare state far removed from the constitutionally limited republic with which this country began, merely quibbling over specific matters of policy, focus, and rhetoric.
The foregoing should not be taken to preclude the maintenance of social order and protection of liberty by some sort of voluntary government and/or informal order, voluntary law, and polycentric rather than monocentric coercive law (such as some historical examples of customary or common law). The arguments in the foregoing and subsequent paragraph have been made, in whole or in part, by the nineteenth-century American individualist anarchist Lysander Spooner as well as by contemporary libertarians Murray Rothbard, Hans-Hermann Hoppe, and Roderick Long. ↩