That which exists is possible. This simple observation complicates libertarian discussions of the possibility of limited government. On the one hand, the government of the United States is “limited” in the sense that it is not a totalitarian government that either claims or exercises the power to restrict all of human conduct. Even after the elimination of many of the constraints on federal and state powers contained in the original Constitution and the Fourteenth Amendment, some limits are still observed. Moreover, the Congress and the states have not attempted to exercise the vast degree of federal and state power that the Supreme Court would likely uphold. So, in this sense, limited government clearly exists and is therefore possible.
On the other hand, the government of the United States far exceeds the very limited powers that libertarians believe are legitimate. Anarchist and minimal-state libertarians alike agree that laws against the unjustified use of force as well as fraud can be legitimately enforced by an existing government, by which I mean that government officials are not acting improperly when they enforce such laws and citizens have a duty to obey, even if the government’s claimed monopoly on law enforcement, as well as its claimed power to tax, violates individual rights. (Analogously, there is nothing unjust about delivering the mail, even if the postal monopoly is a violation of the rights of those who, like Lysander Spooner’s American Letter Mail Company, are prevented from offering a competing service.) But the government of the United States claims and exercises far more power than any libertarian would consider just.
Libertarians aside, and perhaps more pertinent to this discussion, the U.S. government far exceeds the powers that the Founding generation itself would have thought to be just. After all, the U.S Constitution may exceed the libertarian limits upon government simply because its Framers may not have been trying to establish libertarian limits. No matter. To the extent their efforts to limit the power of government by means of a written constitution have failed to hold the line wherever they desired to place it, confidence that any line can be held is still undermined.
The practical problem of holding government to any predefined limits, whether libertarian or not, depends on the nature of the government one is trying to limit. Obviously, the ability to limit a monarch is qualitatively different than the ability to limit a representative democracy. The latter was the problem confronting the Framers. Indeed, James Madison called for a constitutional convention to revise the Articles of Confederation, in part, to rectify “the injustice of state laws” that violated “private rights”:
If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.
Madison then explained why democratic rule by a majority is dangerous to private rights:
Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third? Will the latter be secure? The prudence of every man would shun the danger. The rules & forms of justice suppose & guard against it. Will two thousand in a like situation be less likely to encroach on the rights of one thousand? The contrary is witnessed by the notorious factions & oppressions which take place in corporate towns limited as the opportunities are, and in little republics when uncontrouled by apprehensions of external danger.
Madison also expressed his skepticism of majoritarianism to the Virginia ratification convention, where he observed that “on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism.”
Madison and his follow Framers attempted to address the problem of majoritarian abuse of rights by establishing an “extended republic” large enough to prevent any faction — by which was meant a group that is motivated by interest, or what we call “interest groups” — from gaining a majority in the electorate, supplemented by an elaborate scheme of federalism, separation of powers, limited and enumerated federal powers, a few constraints on state powers (later greatly expanded by the Republican-dominated Thirty-Ninth Congress’s Fourteenth Amendment), and eventually a Bill of Rights. These are the limits on federal and state powers that are baked into the Constitution, but have failed to hold. Or perhaps more accurately, given that some limits on power clearly remain, these constraints failed to hold the line the Framers were attempting to draw.
Why this expansion of power occurred is extremely complicated. Some of the blame can be attributed to the Civil War that transformed the dominant American culture from fearing consolidated national governance to believing that a strong national government was needed to ensure justice with respect to slavery and, soon thereafter, other so-called “progressive” ideals. As a result, the Constitution was amended to provide for the direct elections of senators and a national income tax, two developments that seriously compromised the limits inherent in the Framer’s handiwork. In addition, during Reconstruction, a conservative Supreme Court gutted the Fourteenth Amendment’s constraints on the powers of states to violate the rights of their own citizens on the ground that such a change was too radical to have possibly been Congress’s intent. The Privileges or Immunities Clause has not been heard from since. And this is all before the massive progressive onslaught against the Supreme Court in the early twentieth century when it dared find limits on the exercise of state and federal power in cases such as Lochner v. New York — an assault culminating in the Hoover and Roosevelt-appointed justices’ constitutional revolution of “judicial restraint,” to which some political conservatives, and even some libertarians, adhere to this day.
Assuming as I do this great expansion of government power is considered a problem to be solved rather than progress to be hailed, one response is the refrain, “eternal vigilance is the price of liberty.” True, while the original constitutional lines may not have held, perhaps there is simply no realistic alternative to trying harder, electing the right persons, supporting the right judicial nominees, advocating the right policies (e.g., think tanks like Cato!), and even amending the Constitution to make its limits even clearer. In the present political context, all this seems to be advisable and worthwhile for those who care enough about limited government to do something about it. But some libertarians want more.
Some libertarians prefer a different legal structure, one that promises to work better than the structure provided by the Constitution. Such a structure would take the principles or strategies embodied in the Constitution farther than did the Framers. These principles are (1) reciprocity of power between the ruler and the ruled that is supposed to be accomplished by voting, (2) checks and balances on power that are supposed to result from federalism and separation of powers, and (3) the power of exit that is provided by free emigration and, formerly, the power of secession. These libertarians merely propose two itsy-bitsy, teeny-weenie changes to the status quo: First, end the government’s power to put its competitors out of business by force (which violates the freedom to contract of those who wish to provide and obtain such services); second, end the government’s power to confiscate its income by force (which violates the freedom from contract of those whose property is taken without their consent). Not much really.
What these libertarians hope and expect would result from these two changes is the evolution of a polycentric constitutional order in which one would subscribe to a legal system of one’s choice as today one subscribes to cell phone service, health and auto insurance, or private security providers. The ability of buyers to withhold their patronage and payments from sellers is the most powerful form of reciprocity. Having competing separate legal systems would provide far more effective checks and balances. And simply by switching justice and law enforcement providers, individuals would be able to assert the power of exit without leaving home. Of course, there is much more to be said about all this, which I explain in far greater detail in my book, The Structure of Liberty: Justice and the Rule of Law (Oxford, 1998).
But why spend any time at all considering so radical an alternative that is so unlikely ever to be achieved? First, because it is useful to identify the best way of limiting the powers of those who are responsible for the protection of our rights. Such an ideal is not utopian; the claim is that a polycentric constitutional order is the best practical way of limiting the powers of governance, regardless of how unlikely it is to ever be adopted.
Second, familiarity with the polycentric constitutional ideal liberates one from fearing the following reductio ad absurdum: “Well, if we took the commitment to individual rights really seriously, it would lead to anarchy!” To the extent “anarchy” equals chaos, this is simply not the case. To the extent that “anarchy” is simply another word for a polycentric constitutional order, then the response is “sure, but such a proposal is far from absurd.” Indeed, the absurdity is to believe that we need only continue to elect the right persons to succeed in protecting our rights over the long term. Libertarians know that there is a “structure of liberty” that needs to be understood to be maintained, and needs to be maintained or the good of the individual will be sacrificed for the supposed good of the many.
Finally, an appreciation of the polycentric constitutional ideal can help us appreciate why restoring the characteristics of the original Constitution as amended by the Fourteenth Amendment that have been gutted would be far preferable to the constitutional status quo. Urging a restoration of the original Constitution as amended is not to pine for constitutional law as it existed before 1973, 1965, or 1937 — or what has been called a “Constitution in exile.” Rather, it is to advocate that the whole Constitution be faithfully followed (even the nonlibertarian parts), which has not been the case for a very long time. Despite the Constitution’s serious deficiencies from a libertarian perspective, restoring it as amended by the Fourteenth Amendment would result in considerably more libertarian governance than currently exists. And, unlike some other libertarian policies, such a proposal resonates with Americans who were raised in a culture in which reverence for the Constitution is a matter of abiding faith.
Thus, the pursuit of limited government can simultaneously operate along two interrelated tracks: (1) Develop and better understand the ideal libertarian polycentric constitutional order; and (2) work for the restoration of the whole Constitution which would provide a meaningful movement towards the ideal. In my experience, each enterprise informs and strengthens the other. But will either of these strategies really work? All we can do is what is within our power to do, and perhaps this is for the best. For if it was in the power of an individual or small group to remake society to its desires by pressing a button, we would long ago have perished in the Leviathan or worse.
Randy Barnett is the Carmack Waterhouse Professor of Legal Theory Georgetown University Law Center and a Senior Fellow of the Cato Institute. He is the author of Restoring the Lost Constitution: The Presumption of Liberty (Princeton 2004).