Chair and paper, “Constitutional Structures in Defense of Freedom,” Law and Economics panel, Austrian Scholars Conference, Auburn, Alabama (April 3, 1998).
- Down with the Bill of Rights: Heller and the Central States Cheerleaders (2008)
- Legislation and the Discovery of Law in a Free Society;
- Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights.
Constitutional Structures in Defense of Freedom: Are they Possible?
Law and Economics panel, Austrian Scholars Conference, Auburn, Alabama (April 3, 1998)
Two Chains for the Beast
As we all know, there are two types of libertarians: anarcho-capitalists, and limited-government libertarians, or “minarchists.” Some anarchists think minarchists cannot be true libertarians; Objectivists and others show the reverse to be true as well. But by and large, we all consider each other to be libertarians.
Anarcho-capitalists are aware of government’s existence, of course, and its potential to violate rights. Although minarchists support the existence of government, though not one as large as today’s, they are also well aware of this danger. For this reason libertarians of both stripes are eager to find ways to tame the governmental beast.
It is very difficult to do this, and there are reasons to suspect that it cannot be done very successfully at all (which comes as no surprise to anarcho-capitalists). But there seem to be two basic ways to try to keep government from violating our rights. The first may be termed the substantive approach; the second structural. Under the substantive approach, it is expressly provided that government cannot violate this right or that right. Structuralism seeks to design institutions, or “structures,” that serve to limit government’s tendency to violate rights.
Libertarians in modern times have tended to focus on substantive protection of individual rights. For example, many libertarians cheer when the U.S. Supreme Court strikes down noxious state legislation, even though this is in violation of the principle of federalism, which was a structure originally designed to safeguard liberty. They support amending the Constitution this way and that way to identify more and more of our individual rights. In a sense, the original Bill of Rights (more precisely, the first eight Amendments) was a substantive attempt to limit government, by declaring certain rights, such as freedom of speech, to be beyond the reach of the federal government.
The second, or structural, approach is less direct, but is more fundamental. Broadly speaking, it seeks to set up or maintain institutions, laws, systems, constitutions, traditions, techniques, and the like (broadly conceived, “structures”) that are more likely to result in governmental respect for individual rights. It is true that everything old is eventually new again, for the structural approach to protecting individual rights from government predation was prominent in the original design of the United States Constitution, and conservatives and libertarians are once again having their attention focused on structuralism.
As noted above, the Bill of Rights was in a sense substantive. But in a deeper sense the entire Bill of Rights, as well as its individual amendments, was structural, since it tried to set up a central government with features that fight against its tyrannical tendencies. For example, by merely having a Bill of Rights, there is an implication that the government is not omnipotent. And several of the provisions, especially the rights to jury trial for criminal offenses, to bear arms, and to freedom of speech, press, and religion, while they actually protect substantive rights, also serve to make it less likely that government will violate rights in the first place. For example, government is less able to totally subdue an armed populace, or one that is able to voice opposition loudly.
This shift to structuralism is due, in part, to the rise of appreciation for limited government and free markets in step with the fall of communism, and to social, political, and cultural shifts in the right direction. For example, the Supreme Court has recently begun to strike down some federal legislation based on structural constraints such as federalism or the concept of enumerated powers. Several prominent “mainstream” figures such as federal judges Clarence Thomas and Alex Kozinski, Frank Easterbrook, Richard Posner, and Ralph Winter have also contributed to this trend and general awareness.
Does It Do Any Good?
Below I will explore possible constitutional structures that may be useful in helping to stave off government tyranny. I will highlight some of the most important ones that have been used before, and discuss some more novel ones that have been either proposed by others or herein.
But first, one may ask, why bother? Does it do any good? Is it really possible to limit government? To minarchists, the answer must be yes, and they are thus duty-bound to divulge to us the ways to shackle leviathan, especially since there has never been a truly limited government in the history of mankind. In fact, one wonders why they think such a thing even possible. There are many reasons to think that it is not, both empirical (see: the record of history) and theoretical. (Hoppe 1994)
Even if it is truly impossible to limit government, by either substantive or structural tricks, this does not mean that we should not search for ways to minimize government abuse. Some types of government abuse are worse than others, and some governments are worse than others. Thus, even if the search for a stable, good, limited government is ultimate futile, implementing some limits may still improve our lives, and may even move us in the right direction toward a totally free society.
We must be careful, however, not to accept the notion that we are legitimizing government by working within its rules. This idea is just as illogical as the proposition that by driving on government roads, we agree to the government’s monopolizing the road business. To mouth such nonsense is to cravenly accept insult on top of one’s injury; it is to accept both being forced to be a victim and also to be blamed for being the victim.
Rather, there is nothing wrong with doing what one can within the rules one is forced to live under, to minimize the harm that befalls him from his oppressor. If this includes pointing to rules the government itself seems to sometimes respect, in an attempt to shorten the beast’s leash, we victims certainly cannot be blamed. As Professor Randy Barnett has pointed out, it is government that makes an implicit claim of legitimacy when it promulgates laws that it says you “should” obey. (Barnett 1995, 1993; Kinsella 1997b, 1996) By trying to put roadblocks down in the path of an oncoming enemy tank, we do not thereby sanction its approach.
With these caveats in mind, I turn to some a discussion of important structures which have served a useful role in the past, and also propose the adoption of some others that are novel, at least to me.
Old and Current Structures
Regarding the United States’ constitutional system, Professor David Mayer notes that the Founders
established written constitutions . . . containing various institutional checks ont he power of government designed to prevent it from being abused . . . . These included federalism (the division of powers between the national government and the states), the principle of separation of powers (at each level of government, separating its powers among three distinct and independent functional branches, legislative, executive, and judicial), frequent elections and “rotation in office” (what we call “term limits”), explicit rights guarantees in bills of rights, and the power of the people to amend the constitution. [Mayer 1997, p. 2.]
A brief list follows of several important and well-known structures:
C written constitution
C enumerated powers
C Ninth and Tenth Amendments
C division of powers and checks and balances
C vertical (federalism—Tenth Amendment)
C horizontal (separation of powers)
C concurrent review
C Bill of rights
C limits democracy
C jury trial
C term limits
C no direct election of senators (eroded)
A brief list follows here of several structures which are either new or not that well known or popular today:
C Jury trial and double jeopardy renewed: Fully-informed jury amendment (FIJA)
C limits on legislation
C common law and decentralized law
C supermajority requirements
C removal of secret balloting
C tax limits
C no fed taxing power except from states (reinforces federalism)
C free trade & property
C right to emigrate
C Senators renamed “Ambassadors”, and repeal 17th Amendment (direct election of senators)
C DeRosa’s proposal: provides that a majority vote of the states can overturn a Supreme Court decision that is believed to be unconstitutional
C sunset laws
C Barnett’s presumption against legitimacy of government statutes in derogation of common law or liberties
C Sovereignty/non-entanglements with UN
C immigration limits
C Congressional Responsibility Act of 1995: would require each bill or resolution enacted by Congress to cite the specific constitutional authority pursuant to which it is being enacted.
C Tenth Amendment Enforcement Act of 1996, designed to protect the rights of the States and the people from abuse by the federal government, in particular those abuses in violation of the principal of federalism inherent in the Tenth Amendment.
There are few guarantees in life, and certainly no man’s life, property, or liberty is safe while the legislature is in session. However, the more good constitutional structures we are able to erect in place, the better off we will be.
References and Further Reading
Barnett, Randy E., ed. (1996) “The Relevance of the Framers’ Intent.” Harvard Journal of Law & Public Policy 19: 403.
———— (1995) “Getting Normative: The Role of Natural Rights in Constitutional Adjudication.” Constitutional Commentary 12: 93.
———— (1993) “The Intersection of Natural Rights and Positive Constitutional Law.” Connecticut Law Review 25: 853.
———— (1989 & 1993) The Rights Retained by the People. 2 vols.
Berger, Raoul (1987) Federalism: The Founders’ Design. Norman & London: University of Oklahoma Press.
———— (1989) The Fourteenth Amendment and the Bill of Rights.
Boaz, David (1997a) Libertarianism: A Primer. New York: The Free Press.
———— (1997b) The Libertarian Reader. New York: The Free Press.
DeRosa, Marshall L. (1996) The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control.
———— (1991) The Confederate Constitution of 1861: An Inquiry into American Constitutionalism. Columbia and London: University of Missouri Press. [esp. ch 5: institutional innovations]
Dye, Thomas R. (1990) American Federalism: Competition Among Governments. Lexington, Massachusetts/Toronto: D.C. Heath and Company.
Elkin, Stephen L., and Karol Edward Soltan, eds. (1993) A New Constitutionalism: Designing Political Institutions for a Good Society. Chicago & London: University of Chicago Press.
Epstein, Richard (1985) Takings: Private Property and the Power of Eminent Domain. Cambridge, Mass.: Harvard University Press.
Gardbaum, Stephen (1996) “Rethinking Constitutional Federalism.” Texas Law Review 74: 795.
Hoppe, Hans-Hermann (1994) “Time Preference, Government, and the Process of De-Civilization—From Monarchy to Democracy.” J. des Economistes et des Etudes Humaines 5: 319.
———— (1993) The Economics and Ethics of Private Property. Boston: Kluwer Academic Publishers.
———— (1989) A Theory of Socialism and Capitalism. Boston: Kluwer Academic Publishers.
Kinsella, N. Stephan (1997a) “Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights.” Hastings Constitutional Law Quarterly 24: 757-784.
———— (1997b) “A Libertarian Theory of Punishment and Rights.” Loyola of Los Angeles Law Review 30: 607-645.
———— (1996) “New Rationalist Directions in Libertarian Rights Theory.” Journal of Libertarian Studies 12:2 (Fall 1996): 313-326.
Massey, Calvin R. (1995) Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights.
Mayer, David N. (1997) “Atlas and the World, Then and Now,” paper delivered at Atlas and the World conference, Cato Institute/Institute for Objectivist Studies, Washington, D.C., October 4, 1997.
———— (1994) The Constitutional Thought of Thomas Jefferson. Charlottesville and London: University Press of Virginia.
McGinnis, John O. (1996) “The New Federalism: Restraining Leviathan.” National Review, March 11, 1996: 40.
Mises, Ludwig von. (1966) Human Action. 3d. rev. ed. Chicago: H. Regnery.
Quirk, William J. & R. Randall Bridwell (1995) Judicial Dictatorship.
Redish, Martin H. (1995) The Constitution as Political Structure. New York and Oxford: Oxford University Press.
Rothbard, Murray N. (1962) Man, Economy and State. Los Angeles: Nash Publishing.
Siegen, Bernard H. (1994) Drafting a Constitution for a Nation or Republic Emerging into Freedom. 2d ed. Fairfax, Virginia: George Mason University Press.
Sobran, Joseph (1997) “Americans re-learn how competition (federalism) acts as a check on government.” Philadelphia Inquirer, Jan. 25, 1997.
Zywiki, Todd J. (1997), Book Review of C.H. Hoebeke, The Road to Mass Democracy. Independent Review I:3 (Winter 1997): 439.
LL.M., University of London; J.D., M.S. E.E., B.S. E.E., Louisiana State University. The author practices computer-related patent and intellectual property law with the Houston office of the Philadelphia-based law firm Duane, Morris & Heckscher LLP. He is editor of the forthcoming multi-volume Oceana treatises, Digest of Commercial Laws of the World and Digest of Intellectual Property Laws of the World, and co-author of Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (Dobbs Ferry, New York: Oceana Publications, 1997). Email: firstname.lastname@example.org or email@example.com. The views expressed herein are those of the author alone, and should not be attributed to any other person or entity.
For example, the Federalist Society presented in March 1998 a symposium on “The Revival of the Structural Constitution”. See also McGinnis (1996), Gardbaum (1996), Sobran (1997), Cato Journal, vol. 15, no. 2-3.
In a sense, then, some conservatives have been unduly criticized by libertarians for claiming that the First Amendment is designed to “promote political speech” rather than protect individual rights. One may recognize that individuals do have a natural right to free speech, but still admit that the First Amendment had a largely structural, rather than substantive, purpose. Do we really think Thomas Jefferson or other Founders would think it more important to protect a pornographer’s individual right to publish smut, than to set up an institutional (structural) bulwark to limit the central government? See Mayer (1994) for further details on Jefferson’s views in this regard.