In Defense of the U.S. Constitution

Some libertarians have attacked the U.S. Constitution as being a “blueprint” of powerful government. They confuse the government as it exists today with what it was originally designed and understood to be at the time it was ratified.  Originally, the Constitution endorsed a very minimalist federal government.  For a national government that provides at least a court system and national defense, the Constitution is almost the ideal founding document.

While it is true that the federal government was weaker under the Articles of Confederation, it was weaker in ways that made it a worse government.  The government under the Articles of Confederation did not have the power to tax directly, instead it relied on the states to provide funds for the national government.  But this means that those states that refused to pay taxes got the benefits of the courts and national defense without having to pay the their portion of the costs.  States were encouraged to free ride on each other which would prevent a national defense capable of preventing further attacks by other foreign powers.

The Articles of Confederation government also could not regulate trade, but that does not mean that free trade occurred.  Instead, states imposed all kinds of tariffs on goods imported/exported or even just traveling through the state.  This means those states that didn’t have ports like North Carolina were forced to pay the Virginia and South Carolina tariffs and retaliated with its own tariffs.  New York imposed “entrance fees” on Connecticut and New Jersey farmers that New Yorkers didn’t have to pay.  As more states are added to the mix, this creates a situation even worse than a single tariff.  There is no way we could run a government of 50 states under that model, it barely worked with 13 that mostly had sea access.  The U.S. Constitution solves that problem by taking the power to regulate (and therefore block) trade among the states away from the states.  This created what was for a long time a large free trade zone inside the United States with no tariffs and almost no regulation of commerce (besides things like diseased products).

While there is no doubt that James Madison was key in designing the U.S. Constitution, Alexander Hamilton was an extreme outlier at the constitutional convention and the convention did not follow his suggestions at all with almost no one supporting his ideas.  If they had we would have an elected King for life, which clearly we do not.  James Madison, however, helped draft a wonderful constitution that we should all be proud of.  He may not have been as strongly for limited government as Thomas Jefferson, but he worked with Jefferson many times in arguing for a more limited government interpretation of the constitution.  There is no doubt that Alexander Hamilton wanted hierarchy, aristocracy, and (an elected) monarchy, but the other people of the time did not support that at all.  Hamilton he was an extreme outlier at the convention.  The other American founders believed in the protection of natural rights of everyone and strongly distained any nobility, that is why the U.S. Constitution states: “No title of nobility shall be granted by the United States.”

It is true that the ratification of the constitution did not follow the complete unanimity rules of the articles of confederation, but it did not need to.  The articles of confederation were a mere treaty, and one in which any of the states could withdraw from at any time.  When nine states ratified the constitution and it went into effect, those states withdrew from the articles of confederation, they did not modify the articles of confederation (which would have imposed the new conditions on the states that did not ratify the constitution), and so they did not need complete unanimity.

Just because we have a large government today does not mean that was the result of the constitution as originally understood.  First we have a bunch of amendments like direct election of senators that undermined the federalism checks and balances, and the income tax amendment which allowed far more revenue.  Neither of these amendments can be blamed on the founders.

Secondly, the Supreme Court has radically “re-interpreted” the commerce clause and the general welfare clause during the new deal to allow the federal government to regulate in-state commerce and to spend on things outside the enumerated powers.  The Courts refusal to interpret the constitution as it was originally understood cannot be blamed on the founders.  Originally the Senate (if not the Supreme Court or the President) was meant to stop these kinds of acts which invade the powers of the states, but after the 17th amendment there was no longer this incentive.  Can we really blame the founders for what people did after they were all dead?

Our constitution is a good one, all that needs happen is to repeal a few of the amendments that harmed the original structure (the 16th and 17th amendments), and restore the actual original meaning of the general welfare and commerce clauses.  It can be done, maybe it won’t occur in my lifetime, but eventually it can be fixed.