Lubbock Avalanche-Journal
Sun, August 7, 2022 at 3:15 AM·4 min read

The Constitution of the United States is not a strictly libertarian document. It empowers the national government to protect citizens’ natural rights, which is good and proper. However, it also gives Uncle Sam a wide berth to “promote the general welfare,” which makes libertarians uneasy. Lovers of liberty point out that one man’s “general welfare” is another man’s burdensome tax bill. The powerful tend to interpret vague grants of authority in ways that benefit themselves at the expense of the public.

In our national memory, the Constitution represents a triumph of limited government. But this romantic story doesn’t fit the facts. The Constitution was a deliberate attempt to strengthen government by expanding its powers. The Federalists, chafing under the Articles of Confederation, thought we needed a robust, independent executive and much more legislative leeway. They were concerned more with national greatness and high statecraft than liberty. Devotees of power such as Alexander Hamilton and Robert Morris would likely be aghast at what Washington, DC has become. But they set in motion the forces that got us here.

The Bill of Rights provides some help. Undoubtedly the Constitution’s first 10 amendments have prevented some egregious abuses of power. But not enough. Even here there was a missed opportunity—or rather, a clever political plan. The 10th Amendment asserts that powers not delegated to the national government remain with state governments or the
citizens themselves. But this obvious nod to federalism is less helpful than it looks. The Framers deliberately omitted the word “expressly” from the 10th Amendment—a word that featured prominently in Article II of the Articles of Confederation. There’s a world of difference between “expressly delegated” and “delegated.” The latter leaves far more room for interpretation, which ambitious political operatives often use to expand government power, but never to limit it.

In short, while the Constitution establishes limited and lawful government, it does not establish libertarian government. But until we persuade the public about the value of liberty, it’s the only game in town. When facing a government run amok, pushing for Constitutional fidelity is itself a libertarian project. We can quibble about Congress’s money-creating and taxing powers later. Right now, the goal is getting back to the users’ manual.

While there are a range of plausible interpretations of the Constitution, the words in the text can only be stretched so far. The plain fact of the matter is much of what the federal government does today is unconstitutional, and therefore illegal. Curbing these abuses won’t yield a libertarian government. But we’ll get much closer than by doing anything else. Let’s not fall into the familiar libertarian trap of making the perfect the enemy of the good.

Today’s biggest threats to liberty can be stymied by rolling back the national government. For example, the administrative state — whereby career bureaucrats write their own rules and force them on the public, without the assent of elected officials — is clearly a Constitutional abomination. It’s not about the content of the rules; it’s about where the rules come from. Libertarians must insist that legislation come from Congress, and nowhere else. If a proposed rule can’t make it through Congress, that means the public is sufficiently divided on the issue that the right action is inaction, until dialogue and persuasion have time to work.

Going through Congress is sometimes the libertarian answer. But not always. While we need to bolster the legislature against the executive branch, we also must keep the legislature within its proper bounds. That means recognizing the limits to the various Article 1 powers. For example, the authority “to regulate commerce…among the several states” does not mean elected officials can micromanage the nation’s business affairs. Incredibly, Congress has used this clause to justify its regulation of farmers growing wheat for their own consumption, as well as the production and sale of milk solely within a state. The reason? These activities hypothetically could affect trade between states! Of course, the clause isn’t that elastic. Such restrictions are clearly absurd and unlawful.

Finally, the executive branch needs to be taken down a peg or two. In addition to curbing the administrative agencies, we need much stricter limits on presidential power. Executive orders have become de facto legislation. That’s unconstitutional. The president now has near-unlimited ability to conduct military operations without a declaration of war from Congress. That’s unconstitutional. If you want to know why the stakes of presidential elections have gotten so high, look no further than presidents’ habitual disregard of the Constitution.

There’s no viable path to political change that doesn’t operate within the Constitution. Libertarians should make their peace with an imperfect charter for the sake of a more perfect union. Partisans of the left and right ignore the rules when it’s inconvenient, but we cannot do likewise. The rule of law is a fundamental libertarian value, and we lose more than we gain when we betray our principles. The time is ripe for Constitutional renewal. Libertarians should sound the call loud and clear.

Alexander William Salter is the Georgie G. Snyder Associate Professor of Economics in the Rawls College of Business at Texas Tech University and the Comparative Economics Research Fellow at TTU’s Free Market Institute.
https://www.yahoo.com/news/salter-constitution-dead-long-live-071503981.html