We the people

So begins our nation’s Constitution. Yet, I submit, few Americans today appreciate just how profound and revolutionary this document is. In celebration of Constitution Day, which occurred earlier this month, and the 800^th anniversary of the Magna Carta, which was earlier this year, this column will trumpet the triumph of governance that is the U.S. Constitution and the continued importance of upholding its carefully-crafted structure and original meaning.

Both Republicans like Speaker John Boehner and Democrats like President Barack Obama, and even foreign leaders like Lady Margaret Thatcher, understand the exceptional, extraordinary fact that America was the first nation on Earth founded on an idea instead of a religion or ethnicity. We are a nation premised on the universal, self-evident truths that all men are created equal under God and that they are endowed by their Creator, antecedent to the formation of the state, with certain unalienable, natural rights. A government, then, is properly understood to be instituted by the people to secure and safeguard these God-given rights.

So, how does our Constitution implement these lofty ideals? First, the Constitution acknowledges that all sovereignty resides in we the people and that the government acts in accordance with the will of the people through their elected representatives. This, we call representative democracy. Second, the powers of government are limited in scope and restricted to specific, enumerated grants of authority from the people. This, we call the rule of law.

Sir Winston Churchill famously said that “democracy is the worst form of government except all the others that have been tried” and that “The best argument against democracy is a five-minute conversation with the average voter.” Like Churchill, the framers of our Constitution firmly believed in the right of self-government but understood the faults of popular democracy. Democracy suffers from the problem of rational ignorance, a persistent failure of voters to educate themselves on the political affairs of the polity because the costs of information gathering are higher than any benefit that can be derived from making an educated vote. Moreover, majorities can use their will to subjugate a minority, which James Madison clearly recognized in Federalist No. 10. Despite these shortcomings, democracy is the best method by which to ensure that the government acts in accordance with the general will of the people.

While most people understand the principles of democracy espoused in the Constitution, I posit that the far greater contribution to the advancement of humanity made by the Constitution is its expression of limited government bound by specific, enumerated powers. The Constitution is designed to constrict the powers of government in order to prevent a tyranny of the majority and to maximize the blessings of liberty. There are three independent reasons to bind the fists of the Leviathan.

First, there is the philosophical reason that a minimal state is the most compatible with the protection of the natural rights of the individual. This notion is first explored by John Locke in his “Two Treatises of Government” and later reformulated by Robert Nozick in his seminal work “Anarchy, State, and Utopia.” Any government that seeks to do more than the minimal functions of national defense, policing and enforcing private contracts will necessarily trample on the rights of the people.

Second, the powers of the state must be constitutionally minimized because the actors of the state will invariably by seduced by their power into accumulating more and more of it. As Lord Acton famously observed, “Power tends to corrupt and absolute power corrupts absolutely.” In the same vein, Madison notes in Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” To prevent the accretion of power by the government, the framers designed a careful separation of powers both within the tripartite federal government and between the dual sovereigns of the federal and state governments. Sadly, this precious equilibrium has been bastardized by the delegation of legislative powers to the executive creating the administrative state, the abrogation by the Supreme Court of meaningful judicial review and the encroachment of federal power onto the states through a post-Wickard v. Filburn understanding of the commerce clause and a post-South Dakota v. Dole understanding of the spending power.

Third, the power of government must be limited because the government is simply massively inefficient at managing the lives of the citizenry, and this is to be expected due to perverse incentive structures between private and public actors. In perhaps the earliest American articulation of this principle, Albert Gallatin, the fourth Secretary of the Treasury, stated, “Governmental prohibitions do always more mischief than had been calculated; and it is not without much hesitation that a statesman should hazard to regulate the concerns of individuals as if he could do it better than themselves.” Public choice theory explains why special interest groups and corporate welfare exist due to concentrated benefits and diffuse costs. The simple truth is that the concentrated fist of government will always be less efficient than the diffuse mechanism of the invisible hand, as first explained by Nobel Laureate Friedrich Hayek.