Our Rights Do Not Come from the Constitution

Tom Mullen
Campaign for Liberty -

At some point in the past, the American ethos was centered on suspicion of government -- whether liberal, conservative, or otherwise. For most of America's first two centuries, Americans were taxed less, regulated less, and left more alone by their government than any other people in the world. These conditions resulted in an explosion of innovation, wealth, and culture unsurpassed at any time in human history.

As that trend seems to have reversed, Americans look to their past to try to establish where we have gone wrong and what we can do to solve our problems. Increasingly, some Americans point to the U.S. Constitution and our abandonment of its "limits on government" as the reason for our downfall. It is generally argued by "strict constitutionalists" that the purpose of the U.S. Constitution was to limit the power of the government. Nothing could be further from the truth.

Don't get me wrong. If our government were limited to the powers granted it in that document, the United States of America would be far freer, far more prosperous, and likely not facing any of the monumental problems that it is facing now. However, that does not change the facts about why the Constitutional Convention was called or why the Constitution itself was created. If you are astounded that any Republican can still claim that George Bush was "pro-freedom" or that Barack Obama is "anti-war," you should be equally surprised that anyone can claim that the U.S. Constitution limited the powers of the central government.

Remember that there was already a federal government of the United States prior to the U.S. Constitution. It was defined in a document called the Articles of Confederation and had been in existence since 1778. Under the Articles, the young nation had defeated the mightiest military empire in human history to win its independence. Acknowledging the true meaning of the words "federation" and "federal," the document defined the relationship between the states as "a firm league of friendship with each other." There was no implication that the United States was one nation and the several states merely subdivisions within it. There was no president to usurp power. There was no Supreme Court to legally sanction tyranny. There was no IRS. While the federal government would pay for any war fought by the federation out of a common treasury, the Articles left the actual act of taxation to the States.

"The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled."¹

Compared to the overtaxed, overregulated society that is America today, the America of the 19^th century was one of astounding liberty and prosperity. However, even America after 1787 had much more government than America in its first decade. We are taught that this was a grave problem and that the Constitution was necessary to avoid imminent destruction from any number of horrors, including invasion by a foreign power, civil war, or economic upheaval as a result of protectionism by the states. We accept these assertions as facts because of the reverence we hold for the founders of our country. However, how different was the atmosphere surrounding the Constitutional Convention from that surrounding the Patriot Act, the TARP bailout, or the current efforts to expand government power in the name of environmentalism? Despite the pure heresy of the idea, there was really no difference at all.

By 1787, there were two dominant parties in America. Unlike the two dominant parties today, the Federalists and what would later become the Democratic-Republicans of that time really were diametrically opposed on fundamental issues. Led by Alexander Hamilton, the Federalists sought a much more powerful central government with a central bank, a standing army, and an alliance with big business that would control the economy. In opposition to them were Thomas Jefferson, Patrick Henry, and their followers that believed that the central government's powers should be limited, and that power should be concentrated locally (and mistrusted generally). They opposed a central bank and a standing army and supported a truly free market.

It was not Thomas Jefferson or Patrick Henry that led the effort to call the Constitutional Convention, which neither even attended. It was Hamilton and his Federalists that wanted it. As superbly documented in his book, Hamilton's Curse, Thomas Dilorenzo reminds us that Hamilton actually wanted even more power for the central government than he eventually got into the Constitution.

"At the convention, Hamilton proposed a permanent president and senate, with all political power in the national government, as far away as possible from the people, and centered in the executive. He also wanted "all laws of the particular states, contrary to the constitution or the laws of the United States [government], to be utterly void," and he proposed that "the governor…of each state shall be appointed by the general government, and shall have a negative [i.e., a veto] upon the laws about to be passed in the state of which he is governor."²

Hamilton did not succeed in getting all of the power he wanted for the central government, but he succeeded in increasing that power quite a bit. This too should seem familiar. At every point in American history that interested parties have tried to expand the power of government, they have attempted at expansive powers and settled for something less than they sought but more than they previously had. With each "compromise," Americans lost a little more of their liberty.

When viewed objectively, the very words of the Constitution reveal its true purpose. Constitutionalists often cite Article I Section 8 as proof of the limits on the powers granted to the federal government, but let's not forget what that section actually says. It begins,

"The Congress shall have the power to. . ."

What follows is a long list of powers that the central government did not previously have. Each subsequent section of the Constitution invests power in the one of the three branches of government. Nowhere in the document are these powers limited, except for the short (but nevertheless important) list of exceptions contained in Section 9.

Of course, supporters of the Constitution would point out that the first ten amendments to the Constitution are actually a list of specific limits on government. Indeed they are. However, most people miss the point of those precious amendments. They represent the compromise, the attempt to limit the damage that was already done by the original document. Although several states tried to hold out for a bill of rights before ratifying the Constitution, those ten amendments weren't actually ratified until 1791 -- four years after the Constitution was ratified. They do not change the intent or nature of the Constitution itself -- the massive expansion of the power of the central government.

Like the Patriot Act, the TARP bill, and the coming Climate Treaty, The U.S Constitution was conceived and drafted in an atmosphere of panic that was created by proponents of big government for the express purpose of using fear to win support for a massive expansion of government. Also like TARP or the Patriot Act, it was debated in secret by a convention of delegates that were told that unspeakable horrors awaited America if they did not pass it immediately. Like most expansions of government power, its proponents did not get everything that they hoped for, but they got a lot more power than they had. Most importantly, the next debate over the size and scope of government started from there. The seeds of America's multi-trillion dollar welfare-warfare state really lie in this seminal expansion of government power.

The U.S. Constitution does not embody the American spirit. It is a document that grants power to government. The document that truly embodies the American spirit is the Declaration of Independence, which was written expressly to remove all power from the existing government. If Americans are truly interested in reclaiming their liberty, they should look to this revolutionary document as the source of their inspiration. After such a long train of abuses, it is past time that we "instituted new guards for our future security."

[1]Article VIII, Articles of Confederation
[2] Dilorenzo, Thomas Hamilton's Curse Crown Publishing Group (Random House) New York, NY 2008 Pg. 16