The Myth of the Libertarian Constitution

The original Constitution, as designed by the framers in Philadelphia, has often been seen as guaranteeing individual freedom from government repression. Many of Donald Trump’s critics see him as undermining our nation’s foundational constitutional principles, and people and groups from Joe Biden to Black Lives Matter are often seen as trying to restore them. But is this accurate? In fact, the main purpose of the original Constitution was to expand federal power. The Bill of Rights was in essence a tack-on granting some very important rights while also failing to fully reign in the authoritarian tendencies of the 1787 Constitution.

In order to understand the original purpose of the Constitution, one must consider its historical context. The Constitution’s predecessor, the Articles of Confederation, did not prevent state governments from violating individual freedom but left the central government very weak, prohibiting it from, for example, collecting taxes without approval from the states. The Constitution was designed to change this. Getting the government “off the backs of people,” as William O. Douglas once put it, was not a major goal. In fact, the original Constitution expanded federal involvement in enforcing American slavery. Article 4, Section 2, Clause 3 required the return of slaves who escaped from states where slavery was legal to states where it was banned. The “Fugitive Slave Clause,” crowed James Madison, “was expressly inserted to enable owners of slaves to reclaim them. This is a better security than any that now exists.”

Faced with a document expanding federal power, many Americans called for a bill of rights to be included. After all, even England had a bill of rights. So, in exchange for enough states ratifying the Constitution, a bill of rights was promised. While many important protections for civil liberties were included, many others were conspicuous by their absence. Slavery was still given active federal support. It would be misleading to say the federal government just tolerated slavery. Rather, the federal government promoted slavery, used its police power to hunt down runaway slaves, and worked to prevent Northerners from offering them aid or refuge. There was no explicit right of self-ownership, allowing presidents starting with George Washington to sanction military conscription. State governments were free to restrict voting based on race, sex, and class. This made a mockery of the idea of government by consent of the governed. Rather than establishing that property can only be seized by the State in cases of extreme national emergency, the Fifth Amendment’s “Takings Clause” established that private property could “be taken for public use” as long as “just compensation” was provided. In practice, the vagueness of both “public use” and “just compensation” allowed the government to assume the role of the Sheriff of Nottingham while presenting itself as Robin Hood. Many Americans still hold out hope that the policy of eminent domain protected under the Fifth Amendment allows the State to aid the common good by taking land to build hospitals, schools, and homeless shelters. In reality, it allows government officials to seize property from working and middle-class people and redistribute it to themselves and their wealthy constituents. Worse, it allows them to do this without proving that there is any overwhelming necessity to redistribute the property upward or providing the injured parties with enough compensation to possibly offset the hardship. Our soon-to-be lame duck president is only one of the more inglorious examples of rich people exploiting the vague, statist nature of the Takings Clause to try to have the government seize property from the less wealthy on their behalf.

The right to bodily autonomy, i.e. keeping government “out of the bedroom,” was also not addressed, leaving state laws against homosexuality intact until much later. More broadly speaking, there was no explicit prohibition on government restricting any category of civil rights based on race, sex, gender, and other immutable traits. Language such as “Congress shall make no law” indicated that the Bill of Rights only restrained the federal government and not state governments. This interpretation was common prior to the passage of the Fourteenth Amendment about eighty years later, and some on the Right still cling to it today.

It is no surprise that eliminating legal slavery, official denials of equal rights for women and racial minorities by government, and restrictions on the right to vote overall required seven new amendments. Nor is it any surprise that many of the Supreme Court’s most important decisions regarding equal rights, such as Brown v. Board of Education, Loving v. Virginia, Lawrence v. Texas, and Obergefell v. Hodges were based on the Fourteenth Amendment, not the Bill of Rights. And some of the most important cases dealing with the Bill of Rights, such as West Virginia Board of Education v. Barnette, Texas v. Johnson, Tinker v. Des Moines, and City of Indianapolis v. Edmond, would have been more difficult without the Fourteenth Amendment banning state governments from violating the Bill of Rights.

I may be accused of holding the original Constitution to a modern standard. But we can find examples of legal codes from the late 1700s and early 1800s which were more libertarian on some of these issues. Vermont passed antislavery legislation in 1777 and allowed black men to vote without government interference. Haiti banned slavery after its own revolution in 1804. France also legalized homosexuality in 1791, and Haiti made no attempt to ban it after gaining independence. In addition, many Native American societies were more libertarian on issues of women’s rights, slavery, homosexuality, and gender nonconformity than America under the original Constitution. It is no surprise that abolitionists such as William Nell, Wendell Phillips and William Lloyd Garrison regarded the framers’ Constitution as a barrier to personal freedom. And it is no surprise that Roy Moore, who wishes for a government combining 1860 Richmond with 2020 Riyadh, wishes to revert to the original Constitution.

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