Today’s document is a review of Henry Hazlitt’s A New Constitution Now from The Nation on December 5, 1942, by an unknown author. It’s titled “Constitutional Practices vs. Constitutional Revolution.” The author seems skeptical of Hazlitt’s main and radical point, but is overall just descriptive. Hazlitt wanted to replace our current system with an English parliamentary system. Why? Because by 1942 Franklin Roosevelt had almost a complete disregard for the Constitution. Presidential power had grown. The constitutional constraints simply were not working. Hazlitt’s case can still be made today.

Hazlitt’s proposal was radical, not because of what he suggests we replace our current system with, but rather because he saw a problem in the first place. The reviewer wrote, “I feel that it indulges in rather too much exaggeration to be as effective as it might have been.” Such attitudes can cause massive problems. It can lead to adoptions of amendments such as the 18^th amendment (Prohibition), which was not meant to restrain the government’s power but to actively extend it. Such attitudes can make a constitution no constitution at all.

The constitutional political economy project, which James Buchanan and Gordon Tullock revived in economics back in the 1960s, is no easy task. Politicians are not so noble as Ulysses, and are unwilling to bind themselves to the mast. And as Tullock pointed out, any government strong enough to create the chains to bind themselves are strong enough to break them anyway. The fact that Hazlitt saw the need for a constitutional revolution back in 1942, and that the case can still be made today, are not good signs.

Hazlitt’s solution, a parliamentary system, might not be the way to go either. As he admitted later in life, his proposal didn’t explain how to check the parliamentary power. No one has produced a real solution for how to maintain a limited government. Maybe there is no way. As Ludwig von Mises put it, “The state is the negation of liberty.” The State’s tool is coercion after all. Hazlitt was right about one thing though: The first step is to admit there is a problem.

Download the book review of A New Constitution Now here. 

We’re hosting our inaugural Evening with FEE in Atlanta this Wednesday at 6:45 p.m. at the Westin Peachtree Plaza in Atlanta, starting with a reception in the International C room.

Our guest Robert Levy, senior legal scholar in constitutional studies and chairman of the board of directors at Cato Institute, will speak on how twelve Supreme Court cases radically expanded government and eroded freedom. His articles on law, investments and public policy have appeared in the New York Times, Wall Street Journal, USA Today, Washington Post, National Review, and many other publications. Robert Levy holds PhD in finance from the American University in Washington, DC and juris doctor degree from George Mason School of Law in Arlington, Va. He has been a long time friend of the Foundation for Economic Education.

Robert Levy also played an integral part in financing and serving as co-counsel for the landmark case, District of Columbia v Heller. The court decision affirmed that the Second Amendment protects the individual right to gun ownership and paved the way for McDonald v Chicago and a slew of constitutional challenges against State and local schemes prohibiting individual firearm ownership.

The event is free to the public and, if you haven’t registered already, you can sign up by filling out this short form. We’ve almost reached maximum capacity for the event so please be sure to RSVP as soon as possible!

See you there!

No question about it, the federal government’s immigration policy results in hundreds of deaths annually. And why not? Death and mayhem always result when the feds assume powers the Constitution never granted them, whether it’s the War on Drugs, the undeclared one on guns, or the battle against unauthorized migration.

Search the Preamble, all seven Articles, and 27 Amendments: You’ll find no authorization by which the federal government may control the movement of anyone into or out of the country. (The exception Article I, Section 9, Clause 1, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit,” a euphemism for slaves and the slave trade.) Indeed, the document never mentions the words “immigration” or “immigrants” in the sense of voluntary movement. The framers knew the concept: The Constitution specifies that the president must be native-born and members of the House and Senate must have been citizens for seven and nine years, respectively. And Article I, Section 8 does allow Congress “To establish an uniform Rule of Naturalization.” But that’s a long way from authorizing a federal stranglehold on travel. The Constitution does not permit rulers to issue passports or visas, keep lists of visitors, police the country’s borders, or bar anyone, citizen or not, from coming and going.

Because they understood government’s lethal potential, the founding generation limited its role. Even so, they probably never thought to prohibit Leviathan from controlling immigrants simply because it seldom bothered to in their world.

The State occasionally meddled in migrations – the British government often dumped those criminals it didn’t hang on Australia and the New World; soldiers in earlier times would surround cities stricken with epidemics and shoot anyone trying to flee. But John Wilkes’s experience was far more usual. A radical member of Parliament whose rapier wit frequently skewered the King or his fellow legislators, Wilkes skipped across the English Channel to France when the House of Lords expelled him. No guards on either shore tried to prevent his travels. Ditto for the Marquis de Lafayette, who wished to enlist with the American revolutionaries in 1776, before France had formally pledged its support. When British spies told King Louis XVI of Lafayette’s plans, he promised to arrest him. Lafayette fled to Spain and, finally, America. He feared the royal agents chasing him, not officers on any of the borders he crossed.

This openness prevailed through the first century of our national existence. People came and went as they pleased, citizen or not. It wasn’t until the 1870s that this freedom died – and intriguingly, its murderers never once blamed the Constitution for their crime.

Instead, the Supreme Court invented a governmental “interest” in people’s movements when Californians began hiring Chinese immigrants rather than one another. The Court claimed it had to act when the Chinese “engage[d] in various mechanical pursuits and trades, and thus came in competition with our artisans and mechanics, as well as our laborers in the field.” Where the feds’ newfound “interest” had been hiding during the previous century is anyone’s guess. Nor do we know its origin, unlike that of our rights, which “their Creator” endows on all humankind and which include freedom of movement. The government’s interest apparently materializes out of thin air whenever the feds lust after unconstitutional prerogatives. (Among other interests, the Court found one during the 1960s in “safe” aviation. Hence, federal checkpoints, warrantless searches, high taxes, and grief now curse American airports just as they do the borders).

Sadly, Americans cry ever more loudly for Leviathan to increase its unconstitutional power. Yet each time we clamor for the feds to restrict foreigners’ movements, we tighten our own bonds. Among other evils, government charges us hundreds of dollars for passports and erects bureaucracies that consume billions of our taxes while harassing both citizens and foreigners. It’s building a wall to rival the one Berlin tore down and has even introduced a national ID.

Like the truth, the Constitution can set us free.

“By implication, there are two sets of rights–one belonging to human beings and the other property. Since human beings are more important, it is natural for the unwary to react in favor of human rights.”

–Paul L. Poirot

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With the nomination of Judge Sonia Sotomayor to the Supreme Court, we will be hearing that a lot in the coming weeks. The nomination of a Supreme Court justice occasions much public debate over exactly what judges are supposed to do—and not do. Thus we will hear that it’s Congress’s job to make the laws and the Supreme Court’s job to interpret them, along with the Constitution. Or, to put it in the shorthand: judges should not make the law.

It seems like a tidy division of labor, but there is a certain problem—namely, that the line between making and interpreting law is exceedingly fine—if it exists at all. Indeed, interpreting the law is tantamount to making it. Interpretation is a creative act.

Since in our society it is men and women who write and interpret the laws (and the Constitution), the rule of law is necessarily the rule of men and women.

I realize this is a heretical thought among advocates of individual freedom, but facts are facts and it’s better to face them. A weak argument for liberty is harmful to the cause, so let’s mount the best case we can.

Constitutions and laws do not speak for themselves. People must decide what they mean. This is by nature a controversial truth from which there is no escape. Seemingly clear language is often argued about for years, indeed decades and centuries. As I’ve written elsewhere, “[I]t’s not as if the proper interpretation (whatever that may be) can be hardwired somehow to guarantee that legislators, presidents, and judges will act in certain ways, or that the public will demand it. At every point people will be making the interpretive decisions, including the decision over which interpretation is right.”

Or as Ludwig Wittgenstein wrote in Philosophical Investigations, “[A]ny interpretation still hangs in the air along with what it interprets, and cannot give it any support.”

John Hasnas, a visiting professor at Duke University Law School and a first-rate legal philosopher, has taken up this matter in a paper explosively titled “The Myth of the Rule of Law.” (He has developed his thesis further in “The Depoliticization of Law” [pdf]. Quotations are from the earlier article.)

Hasnas argues that laws can never be determinate because no language is exempt from interpretation. The First Amendment to the Constitution is about as plain as language gets, but after more than 200 years its meaning is still subject to disagreement. Or, the Commerce Clause, which says Congress shall have the power to “regulate … commerce among the several states,” was initially interpreted as limited to interstate commerce, although that meaning is by no means obvious from the text. The framers were perfectly capable of writing “between citizens of different states” when they wanted to and as they did in Article III on the powers of the judiciary.

Thus to interpret law is to make law.

Contradictory Rules

Moreover, in a legal system such as ours, Hasnas writes, there is inevitably a host of “incompatible, contradictory rules and principles…. This means that a logically sound argument can be found for any legal conclusion.” (Hasnas gives several examples.) “Because the law is made up of contradictory rules that can generate any conclusion,” Hasnas writes, “what conclusion one finds will be determined by what conclusion one looks for, i.e., by the hypothesis one decides to test. This will invariably be the one that intuitively ‘feels’ right, the one that is most congruent with one’s antecedent, underlying political and moral beliefs. Thus, legal conclusions are always determined by the normative assumptions of the decisionmaker…. [I]t is impossible to reach an objective decision based solely on the law. This is because the law is always open to interpretation and there is no such thing as a normatively neutral interpretation. The way one interprets the rules of law is always determined by one’s underlying moral and political beliefs.”

The upshot is that interpreting the law is an intrinsically political act.

Hasnas points out that the necessity for interpretation does not mean that the law will be acutely unstable. There is indeed a large degree of stability. The law changes over time, but not day to day. Yet, he writes, “The stability of the law derives not from any feature of the law itself, but from the overwhelming uniformity of ideological background among those empowered to make legal decisions…. [T]o assume that the law is stable because it is determinate is to reverse cause and effect. Rather, it is because the law is basically stable that it appears to be determinate. It is not the rule of law that gives us a stable legal system; it is the stability of the culturally shared values of the judiciary that gives rise and supports the myth of the rule of law.”

Hasnas (who advocates competition in the production of law) concludes, “The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion.”

This need not lead us to pessimism or cynicism. As Thomas Paine recognized, the fundamental order that defines any society—indeed, the order without which we would call a group of people a mob rather than a society—originated not with top-down legislatures but from bottom-up custom, contract, and common-law processes. The great liberal legal scholar Bruno Leoni wrote in Freedom and the Law that a legislature is analogous to a central planner, with all the knowledge problems that plague it, while a common-law system is more like the free market, with far better access to the knowledge of time and place that is scattered throughout society and unavailable to a central authority. Better to progressively shrink the sphere in which legislators can operate so that people are free to govern themselves through voluntary exchange.

Advocates of liberty will ultimately carry the day not by invoking impossible standards like “the rule of law not of men,” but rather by directly upholding the standard of freedom and justice.

Alas, it says nothing about knowing American history.

Good thing for Sen. Lindsey Graham (R-S.C.). He’d have to find honest work.

Interviewed after Tuesday night’s State of the Union address, Graham was asked about the situation in Iraq. Trying to put the difficulties in perspective, he said the United States did not get its constitution until 1789.

Buzz! Wrong answer, Sen. Graham. But as a consolation prize you get to take home a copy of Merrill Jensen’s book The New Nation: A History of the United States During the Confederation, 1781-1789 . We’ll also throw in a copy of Herbert Storing’s What the Anti-Federalists Were For. And thanks for playing our game.

Seriously, I realize that children learn virtually nothing about the eight years before 1789 during which the United States existed under the Articles of Confederation. But shouldn’t someone who holds himself qualified to be a U.S. senator know that what we call the Constitution was really America’s second constitution?*

The Articles were adopted by the Second Continental Congress on November 15, 1777, and took effect after ratification on March 1, 1781. That was seven months before Cornwallis surrendered at Yorktown on October 19, 1781, and two and a half years before the Treaty of Paris was signed on September 3, 1783.

The Articles remained in effect until the Constitution displaced them in 1789. The process by which the Articles were scrapped — rather than amended — in favor of an entirely new blueprint was dubious. As the Anti-federalist Federal Farmer (most likely Melancton Smith of New York) wrote in October 8, 1787,

A general convention for mere commercial purposes was moved for — the authors of this measure saw that the people’s attention was turned solely to the amendment of the federal system; and that, had the idea of a total change been started [sic], probably no state would have appointed members to the convention. The idea of destroying, ultimately, the state government, and forming one consolidated system, could not have been admitted — a convention, therefore, merely for vesting in congress power to regulate trade was proposed. [Emphasis added.]

Eight years is a significant period for a nascent country to endure after breaking away from an empire. Sen. Graham’s remarks were meant to suggest that what took place in the United States during that time was similar to what’s taking place now on in Iraq. But that is ridiculous. The 13 states did not embroil themselves in civil war or sectarian violence — neither internally nor with one another. Quite the contrary.

Freed from Central Coercion

How was life under the Articles of Confederation? As Merrill Jensen writes, Americans fought against and freed themselves from . . . coercive and increasingly centralized power . . . . They did not create such a government when the Articles of Confederation were written, although there were Americans who wished to do so. . . . Thus the American Revolution made possible the democratization of American society by the destruction of the coercive authority of Great Britain and the establishment of actual local self-government within the separate states under the Articles of Confederation.

Under the Articles, Congress had no power to tax or to erect trade barriers. If it needed revenue it had to petition the states. There was no separate executive branch, with all its potential for de facto quasi-monarchization.

People in the new states, Jensen writes, were full of optimism about the possibilities ahead. Criminal codes were made more humane, with the death penalty removed for all crimes but murder and, in some cases, treason. Property qualifications for voting were abolished over time. Charities and mutual-aid societies were formed, along with library, scientific, and medical associations. Schools were founded. The union of church and state was increasingly opposed. The steps in the direction of religious freedom and the complete separation of church and state were thus halting, but the direction was sure and the purpose was clear, Jensen writes.

Of course there was slavery, which contradicted the philosophy espoused in the Declaration of Independence. But some states moved against it. Within a few years after 1775, either in constitutions or in legislation, the new states acted against slavery. Within a decade all the states except Georgia and South Carolina had passed some form of legislation to stop the slave trade, Jensen writes. New England states and Pennsylvania took steps toward abolition, and anti-slavery societies flourished.

What about the economies of the states? We can infer much from the fact that those who wanted to overthrow the Articles for a new constitution warned of coming economic turmoil if the central government were not fortified. Hence turmoil was a prediction not a description. Although individuals (white males) were free to a hitherto unknown extent, the states were no models of laissez faire. (But then neither was the consolidated national system after 1789. The first economic action of the first Congress under the Constitution was imposition of a protective tariff.)

Rent-seeking (political entrepreneurship) was rampant in the states, as it has been in every real-world system. Subsidies, loans, trade restrictions, and land giveaways were common. In this largely agrarian society, Jensen writes, the dominant note was sounded by American merchants and business men who lived mostly in the seaport towns. . . . Their power was born of place, position, and fortune. They were located at or near the seats of government and they were in direct contact with legislatures and government officers. They influenced and often dominated the local newspapers which voiced the ideas and interests of commerce and identified them with the good of the whole people, the state, and the nation. (Hence, the bad name capitalism has for many people.)

Merchants and manufacturers disagreed on what kind of government intervention should exist, but not on whether it should exist. That’s because they had different competitors. Merchants liked imports but wanted barriers to foreign (especially British) shipping, while manufacturers wanted barriers to foreign goods and didn’t care about shipping. Part of the impetus toward a strong central government was business’s desire for a uniform national economic policy, since individual states, acting alone, could hurt themselves by having more stringent restrictions than their neighbors and one state could capture the lion’s share of trade by competitively lowering its barriers. In other words, the consolidation of 1789 was part regulatory cartel.

Regional Differences

There were also regional differences. Most manufacturing was in the North, so protectionist sentiment was concentrated there. The South had little manufacturing and wanted access to cheap foreign goods. Thus high protective tariffs found little support. Northerners who coveted the southern market realized that only a nationwide trade policy would serve their interests. On the other hand, southern farmers wanted as many shipping options as possible and had little interest in restrictions on foreign carriers.

State economies suffered booms and busts — and a depression in 1784-85 — thanks to paper money, government banking policies, and other intervention. But the crises were not extraordinary. As Jensen summarizes, There is nothing in the knowable facts to support the ancient myth of idle ships, stagnant commerce, and bankrupt merchants in the new nation. As long as ago as 1912, Edward Channing demonstrated with adequate evidence that despite the commercial depression, American commerce expanded rapidly after 1783, and that by 1790 the United States had far outstripped the colonies of a few short years before.

Despite the heavy intervention, the states still had virtually an unprecedented degree of economic freedom. A person could easily get a plot of land and take care of his family by farming. There was no distant overbearing central bureaucracy to worry about. Contact with government was minimal. Imagine what the economic growth and the justice of income patterns would have been had the states practiced laissez faire!

Thus contrary to Sen. Graham, pre-1789 America had a constitution, almost no central government, prosperity, and peace. Not too shabby.

The reasons for junking the Articles of Confederation for the Constitution are worthy of study but too big a topic for today. Suffice it say, as Jensen did, that the founding fathers who wrote the Constitution of 1787 were quite a different set of men from those who signed the Declaration of Independence in 1776.

* * *

That means George Washington wasn’t really the first president of the United States. He was the 11th. Ten men served as president of the United States under the Articles. Samuel Huntington was first. Some people erroneously regard John Hanson as first. Huntington’s tenure, September 28, 1779,to July 9, 1781, was transitional; he was elected by the Continental Congress, but by the time ill health forced him to resign, the Articles were in effect. The first president elected under the Articles was Thomas McKean, July 10, 1781, to November 4, 1781. Hanson, November 5, 1781, until November 3, 1782, was the first to serve the full term, of which only one was allowed. President meant president of the Congress. There was no executive branch.