Ryan McMaken – January 31, 2023
If one cares to look, it’s not difficult to find numerous columns written for mainstream news outlets announcing that the US Constitution has failed. This ought to raise the question of “failed to do what?” The answer depends largely on the one claiming the constitution has failed. On the Left, claims of constitutional failure generally revolve around the idea that the constitution doesn’t empower the federal government enough. For example, Chris Edelson of the American Constitutional Society believes the constitution has failed because the US government hasn’t done enough about global warming and racial injustice. Ryan Cooper at The Week says the constitution is a failure because of gerrymandering and not enough “democracy.” On the other hand, many classical liberals (i.e., libertarians) have declared the constitution a failure because it has failed to restrain the US government from violating human rights such as life and property.
We see there are many standards we might employ to show that the constitution has failed, depending on what metric we wish to use. But let’s ask what the politicians pushing the new constitution of 1787—i.e., the “Federalists”—promised as the benefits of the new constitution. They promised three things: that the constitution would ensure the government would respect the freedoms of the citizenry, that it would provide a means of keeping the peace among the member states, and that it would provide a strong military defense.
Sadly, the constitution long ago failed on two counts out of three. A mere 73 years after its ratification, the constitution failed to prevent a bloody civil war. The Federalists had promised that wouldn’t happen. When it comes to the matter of freedom, of course, the record is even worse, and the constitution has been used to justify countless assaults on liberty from Japanese internment to unleashing armies of spies against the American people.
The only area in which the constitution has “succeeded” has been in growing the size of the central government in Washington. The enormous state that has grown out of the constitution of 1787 has indeed rendered invasion by foreign powers virtually impossible. But this has been done at the cost of numerous elective wars, trillions in waste, and an out-of-control national security state.
Yet, nostalgic appeals to the alleged greatness of the constitution—and the brilliance of the so-called “Founding Fathers”—continue to be a fixture in defending the status quo while granting legitimacy to the regime. Any real challenge to federal power, however, will require we stop clinging emotionally to this failed legal document that has secured neither peace nor freedom.
The Constitution Does Not Protect Freedom
When it comes to the Constitution’s ability to restrain government power, it is apparent that the text of the document is insufficient to counter efforts to empower the federal government rather than limit it. We need only look around us to see how the federal government taxes, regulates, spies, sues, and imprisons countless Americans with federal powers that are in no way authorized in the constitution itself.
It is also apparent that the public and their representatives are uninterested in limiting federal power. I claim no novelty in pointing this out, of course. More astute observers recognized the impotence and failure of the US Constitution decades ago. As Murray Rothbard wrote in 1961:
From any libertarian, or even conservative, point of view, it has failed and failed abysmally; for let us never forget that every one of the despotic incursions on man’s rights in this century, before, during and after the New Deal, have received the official stamp of Constitutional blessing.
And before Rothbard, there was Lysander Spooner, who noted:
the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize….But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.
In our modern day and age, anything that the regime’s federal judges decide is “constitutional” is, in fact, de facto constitutional. In other words, appealing to the text of the Constitution to claim illegitimacy for the latest government power grab is pointless and irrelevant to the task of actually limiting the power of the state.
Everything the federal government wishes to do is ultimately “constitutional.” So long as the public tolerates it. Public opinion is the only true restraint.
The Constitution Failed to Prevent Civil War
Moreover, the US constitution didn’t even last three generations before a civil war broke out. If the constitution were ever nearly as magnificent as its defenders claim, the US Civil War would never have occurred at all. Many defenders of the current constitution prefer to distract from this fact by attempting to dwell on the blame game: “oh, if those dastardly guys on the other side hadn’t done those bad things, there would have been no war!”
Who is to blame, however, is irrelevant to the fact that the constitution failed to provide for a peaceful way out of the conflict that boiled over by 1860. That is, the constitution’s failure can be seen in both the fact that the secessionist states concluded exit was the only option, and in the fact that the unionists felt a bloody war of conquest was constitutionally acceptable.
Decades earlier, the constitution had been pushed on the masses by the Federalists with the promise that the constitution would manage competing interests and conflicts in such a way that the new nation would be able to overcome such differences. This is part of James Madison’s argument in Federalist No. 51. He insists that even assuming self-serving motives among various groups—i.e., assuming men are not “angels”—the federal government would somehow be balanced against itself to prevent the need or impetus for civil wars.
Instead, by 1861 the United States fit the definition of a violent failed state. Much of the country rejected the authority of the central government which could no longer claim to exercise authority over all of the nation’s regions and borders. The central government’s response was to rely on military force. In this regard, from 1861 to 1865—and arguably throughout Reconstruction—the United States was no different from many of the failed states in similar situations we have seen in Latin America and Africa. We find many cases in these countries in the last century in which separatists rejected rule from the center. This often resulted in civil war and military occupation of the losing side’s territory. When this happens in other countries, we often conclude (correctly) that the country’s constitution has failed. For some reason, when the same thing happens in the United States, we declare the constitution to have been “preserved” and a stunning success.
As with many other failed states, the crisis in the US was only brought to an end by a bloodbath. The numbers were so large, in fact, that were a similar proportion of the US population to be killed in a war today, it would amount to seven million people. Moreover, as usually occurs in the wake of a conflict of that magnitude, a drastically changed constitution replaced the old one with political institutions that were far more centralized than what had come before. The union was no longer a matter of voluntary membership among states, but was now based on threats of military intervention from the center.
The Constitution’s Only “Success” Has Been in Increasing State Power
Of course, it is always possible to label the constitution a “success” if we view the constitution primarily as a means of growing the power of the national regime. In this endeavor, the constitution and its supporters have been enormously successful. The seeds of this development were already apparent even in the days of the ratification when the Anti-Federalists greatly feared the national government would overwhelm the member-state governments. Their opposition was strong enough that the Federalists resorted to a number of dirty tricks, as noted by Murray Rothbard:
The Federalists, by use of propaganda, chicanery, fraud, malapportionment of delegates, blackmail threats of secession, and even coercive laws, had managed to sustain enough delegates to defy the wishes of the majority of the American people and create a new Constitution.
The Federalists managed to win the day, although their promises of freedom did not even survive the eighteenth century. Rather, the central government immediately got to work abusing its own powers with vicious attacks on freedom such as the Alien and Sedition acts. By the mid nineteenth century, the nation was on the verge of civil war. The “solution” to this was to have one half of the country invade the other half.
Yet, we’re told the constitution behind all this has been a wonderful success, the “Founding Fathers” were geniuses, and we must never break up this sacred union by means of “national divorce” or any radical departure from the status quo.
The reality is far more disappointing.
Originally published at Mises.org. Ryan McMaken is a senior editor at the Mises Institute. He has a bachelor’s degree in economics and a master’s degree in public policy and international relations from the University of Colorado. He was a housing economist for the State of Colorado. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
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