Don't Like Our New Constitution? Don't Worry, It's Bound to Change Tomorrow

We have a new constitution, says Angelo Codevilla in this Independent Institute article. He asserts that the effort that has been ongoing since at least the 1930s to eliminate any substantive limit on governmental power has finally succeeded. The "Constitution of 2014," says Codevilla, "is best understood by asking, ... what may the president of the United States NOT do, so long as at least one third of the Senate protects him from being removed from office."

The chilling answer, says Dr. Codevilla, is "not much." He writes, "Quite simply, our ruling class behaves as if the Constitution of 1787 no longer exists, and as if the words of laws merely authorize the powerful to “do anything I want.”" Those final quoted words are a direct boast from the current US president (see Washington Post 2/10/14 article).

After regaling readers with several proofs supporting his thesis, Codevilla writes, "Increasingly since the 1930s, our lives have been run by administrative agencies that make, administer, and apply regulations as they see fit rather than by laws that Congress passes, that the President administers, and that only courts and juries may force onto individuals."

(I might quibble with Dr. Codevilla about his 1930s starting point. I think he could easily look back at least to the administration of Theodore Roosevelt, and quite possibly, even further back to the Civil War and post Civil War eras.)

This expansion of administrative power has been bolstered by the fact that the "Supreme Court has shaved away to nothing the distinction between law and administrative decree" so that today's "so-called laws are in fact grants of power to bureaucracies."

Partisans will insist that this state of affairs is due to the nefarious dealings of the "other" party. But Codevilla asserts that it has in fact been a completely bipartisan effort. While opponents eagerly hurl accusations of presidential incompetency at the current occupant of the White House, there is little doubt that he has been immensely successful in expanding executive power, taking the expansion game played by all of his predecessors over the last century to a new level. The opposition party "facilitates this process and looks forward to filling the shoes that they have helped ... expand," since the White House will inevitably someday change hands.

(On a side note, Gene Healy explains in this Reason.com article why presidents always pursue and accept new expansions of executive power. It comes down to the general expectations of Americans who place "virtually boundless" demands on the president for nearly all of their public and private aspirations; an example of overly successful government marketing and the all too human desire for a divinely empowered earthly monarch.)

I think that Dr. Codevilla is a little late coming to the party, since Murray Rothbard very clearly outlined this thesis 40 years ago in his 1974 treatise Anatomy of the State. Rothbard explores in some detail the expansion of the state and the ineffectiveness of constitutional law in providing any real limit to the power of the state.

The government, asserted Rothbard favorably quoting H.L. Mencken, is not "a committee of citizens chosen to carry on the communal business of the whole population, but ... a separate and autonomous corporation, mainly devoted to exploiting the population for the benefit of its own members."

Of course, this corporation could not continue to exist without co-opting significant portions of the populace, combining with the politically powerful, rendering vast swaths of the populace politically impotent, regularly demonstrating its power over the commoners, perpetuating myths about individual liberties that no longer actually exist, and maintaining a certain chimera of legitimacy among the public. In his "What the State Fears" section Rothbard outlines how the state goes about maintaining legitimacy while oppressing its subjects citizens.

Any Boy Scout that has earned the Citizenship in the Nation merit badge ought to be able to explain how our government was structured to maintain individual liberty by having three competing branches (executive, legislative, judicial) and multiple competing levels (federal, state, local). The fact that all of these entities are merely vying for power over the lives of individuals — and are thus part of the same corporate entity whose interests are often at odds with those of the populace — is never mentioned in merit badge classes.

In his "How the State Transcends Its Limits" section Rothbard carefully demonstrates how the state has set itself up as its own judge, leaving the fox guarding the hen house, as it were, when it comes to limiting the power of the state and preserving liberty. The judiciary, which wields the ultimate authority on what is constitutional, has instead steadily legitimized the expansion of state power in defiance of the original intent of our nation's founding documents.

Rothbard laments, "The last few centuries were times when men tried to place constitutional and other limits on the State, only to find that such limits, as with all other attempts, have failed. Of all the numerous forms that governments have taken over the centuries, of all the concepts and institutions that have been tried, none has succeeded in keeping the State in check. The problem of the State is evidently as far from solution as ever."

I highly recommend the book Ratification by Pauline Maier, which explores the process of ratification of the US Constitution. No one could tell how it was going to turn out at the time. Anti-federalists that raised many valid concerns about the document ended up losing. State legislatures ultimately sided with the federalists, who admitted to certain flaws in the document but insisted that it was the best that was politically achievable. Still, the anti-federalists demonstrated prescience, since nearly every warning they issued about the inability of the new constitution to curb expansion of state power has come to pass.

A number of voices have lately called for a new constitutional convention, as authorized by Article V of the US Constitution. I believe that such a convention would serve as a wake up call to the federal government that it is doing an inadequate job of marketing itself. But I also believe that a new constitutional convention would end up disappointing most of its supporters.

Even with all of its amendments, the US Constitution is a very concise document, containing fewer than 5,000 words. Would a new constitutional convention succeed in creating anything so succinct at such a rapid pace? Think of all of those vying for political power that would line up to lobby to affect the new constitution.

A few years ago when the European Union attempted to develop a constitution, the multi-year effort resulted in a sprawling document that delved into nitpicking details of daily life. Efforts to produce clarity instead produced confusion. Is it any surprise that ratification could not be achieved? Is there much of a chance that a new US constitution wouldn't suffer from the same kind of bloat and ambiguity?

Rothbard might have been ahead of his time. But his 40-year-old conclusion that constitutional government has failed to realize its stated goal of limiting the power of the state seems quite accurate. Without explaining further, Rothbard called for "new paths of inquiry" to find "a solution to the State question."

Some might regard such rhetoric as treasonous. Indeed, the Declaration of Independence states, "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

But it is important to realize that James Madison and his cohorts were breaking new ground when they developed a new system of government that did better at preserving liberty for longer than just about any other documented system in history. Maybe it is time to explore new ideas, given that the system bequeathed to us by our Founders has ultimately proven inadequate to the task for which it was created.