Freedom and the American Constitution

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Freedom and the American Constitution

• Gene Healy
• Cato University
• July 23, 2008

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The Republic of Cynicism

• Federalists and antifederalists both agreed that
  man in his deepest nature was selfish and
  corrupt that blind ambition most often overcomes
  even the most clear-eyed rationality and that
  the lust for power was so overwhelming that no
  one should ever be trusted with unqualified
  authority.
• --Bernard Bailyn, The Ideological Origins of
  the American Revolution (1967)

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Skepticism toward Power Madison

• In no part of the constitution is more wisdom to
  be found, than in the clause which confides the
  question of war or peace to the legislature, and
  not to the executive department. the trust and
  the temptation would be too great for any one
  man.
• --Madison, Helvidius IV (1793)

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Skepticism toward Power Hamilton

• The history of human conduct does not warrant
  that exalted opinion of human virtue which would
  make it wise in a nation to commit interests of
  so delicate and momentous a kind, as those
  involved in the treaty power to the sole
  disposal of a magistrate created and
  circumstanced as would be a President of the
  United States.
• --Federalist No. 75

5
Where Were Going

• Structure
• Specific Provisions
• The General Welfare Clause
• The Commerce Clause
• The Vesting Clause
• The Commander in Chief Clause
• The Judicial Power
• What Went Wrong?
• What to Do?

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The Constitutions Structure
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Madisons Nightmare

• The accumulation of all powers, legislative,
  executive, and judiciary, in the same hands,
  whether of one, a few, or many, and whether
  hereditary, self-appointed, or elective, may
  justly be pronounced the very definition of
  tyranny.
• --Federalist No. 47

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Ambition Counteracting Ambition

• The interest of the man must be connected with
  the constitutional rights of the place. It may be
  a reflection on human nature, that such devices
  should be necessary to control the abuses of
  government. But what is government itself, but
  the greatest of all reflections on human nature?
• --Federalist No. 51

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Enumerated Powers

• The powers delegated by the proposed
  Constitution to the federal government are few
  and defined. Those which are to remain in the
  State governments are numerous and indefinite.
  The former will be exercised principally on
  external objects, as war, peace, negotiation, and
  foreign commerce.
• --Federalist No. 45

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Federalism Armed

• To these would be opposed a militia amounting to
  near half a million of citizens with arms in
  their hands, officered by men chosen from among
  themselves, fighting for their common liberties,
  and united and conducted by governments
  possessing their affections and confidence.
  
• --Federalist No. 46

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The General Welfare Clause

• The Congress shall have Power To lay and collect
  Taxes, Duties, Imposts and Excises, to pay the
  Debts and provide for the common Defence and
  general Welfare of the United States
• --Article I, sec. 8, cl. 1

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The Commerce Power

• The Congress shall have power to regulate
  Commerce with foreign Nations, and among the
  several States, and with the Indian Tribes
• -- Article I, sec. 8, cl. 3

13
The Vesting Clause

• The executive Power shall be vested in a
  President of the United States of America
• --Article II, sec. 1, cl. 1

14
Our Commander in Chief?

• In this respect his authority would be nominally
  the same with that of the king of Great Britain,
  but in substance much inferior to it. It would
  amount to nothing more than the supreme command
  and direction of the military and naval forces,
  as first General and admiral of the Confederacy.
• -- Federalist No. 69

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An Impenetrable Bulwark

• The judicial Power of the United States shall be
  vested in one supreme Court, and in such inferior
  Courts as the Congress may from time to time
  ordain and establish.
• --Article III, sec. 1

16
How Prescient Were the Framers?

• The regulation of commerce, it is true, is a new
  power but that seems to be an addition which few
  oppose, and from which no apprehensions are
  entertained.
• --Federalist No. 45
• If the federal government is to have collectors
  of revenue, the State governments will have
  theirs also. And those of the former will be
  principally on the seacoast, and not very
  numerous
• --Federalist No. 45

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The Progressives Intellectual Revolution

• The best rulers are always those to whom great
  power is entrusted. It is, therefore, manifestly
  a radical defect in our federal system that it
  parcels out power and confuses responsibility as
  it does. The main purpose of the Convention of
  1787 seems to have been to accomplish this
  grievous mistake.
• --Woodrow Wilson, Congressional Government
  (1885)

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The General Welfare State

• Congress may spend money in aid of the general
  welfare.
• --Helvering v. Davis, 301 U.S. 619 (1937)

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Delegation Running Riot

• The Congress is not permitted to abdicate or to
  transfer to others the essential legislative
  functions with which it is thus vested.
• --Schechter Poultry v. US, 295 U.S. 495 (1935)
• The Emergency Price Control Act of 1942, held not
  to involve an unconstitutional delegation to the
  Price Administrator of the legislative power of
  Congress
• --Yakus v. US, 321 U. S. 414 (1944)

20
Everything Commerce

• Even if appellee's activity be local and though
  it may not be regarded as commerce, it may still,
  whatever its nature, be reached by Congress if it
  exerts a substantial economic effect on
  interstate commerce.
• --Wickard v. Filburn, 317 U.S. 111 (1942)

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What to Do?
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• I often wonder whether we do not rest our hopes
  too much upon constitutions, upon laws and upon
  courts. These are false hopes believe me, these
  are false hopes. Liberty lies in the hearts of
  men and women when it dies there, no
  constitution, no law, no court can even do much
  to help it. While it lies there it needs no
  constitution, no law, no court to save it.
• --Judge Learned Hand, The Spirit of Liberty
  (1944)