I recently came across an essay written by Donald J. Boudreaux in 1998: "What Is the American Constitution?" Boudreaux -- who is now a co-blogger at the excellent Cafe Hayek and its companion, Market Correction, and also serves as chairman of the Department of Economics at George Mason University -- wrote the essay when he was president (1997-2001) of the Foundation for Economic Education.
Boudreaux is an idealistic libertarian who, in my reading of him, seems to be an anarcho-capitalist (a.k.a. stateless capitalist). Eerily, "What Is the American Constitution?" parallels the views of Roger Scruton -- a conservative, statist, monarchist, skeptic of free markets -- as expressed in his The Meaning of Conservatism, which I am now reading. (I won't say more about Scruton's book until I've finished it.)
Here I comment on several excerpts of Boudreaux's essay. In the end I offer a much different view of the American constitution than that offered by Boudreaux.
I begin with Boudreaux's thesis:
The constitution is neither a document nor the collection of words in a document. Instead, the constitution is the dominant ideology within us, an ideology that determines what we permit each other to do, as well as what we permit government to do. No words on parchment, regardless of the pedigree of that parchment or of the men and women who composed those words, will ever override the prevailing belief system of the people who form a polity.
Boudreaux suggests that the constitution is only what "we" allow each other to do. But "we" are, to a large extent, bound by the decrees of government (popular or not) and government's ability to enforce those decrees. That there is not a one-to-one linkage between the "prevailing belief system" of the people and what the people are allowed to do (or not do) can be seen, for example, in the imposition of integration in the South, the legalization of abortion, and the collection of taxes to support for several years what had become an unpopular war in Vietnam.
Moreover, it is far from clear that there is a "prevailing belief system" that enables "us" to agree about what "we permit each other to do, as well as what we permit government to do." Can there be such a monolith in a republic whose citizens are so heterogenous in ethnicity, religion, education, economic status, social status, intelligence, and exposure to the arguments for and against free markets (to name only a few aspects of dissimilarity)? I doubt it. There may be general agreement about such matters as the wrongness of murder and theft, but that general agreement does not translate to a national consensus about what constitutes murder or theft, or how (or whether) they should be punished. (Consider, for example, the disparate ways in which murder and theft are parsed in the laws of the States, the equally disparate sentences that may be applied to those various degrees of murder and theft, and the broad latitude exercised by prosecutors and juries in their application of the law.) The meaning of liberty (and how best to secure it) is similarly surrounded in discord. Thus we inevitably fall back on government as the means by which to reach and enforce compromises about what we permit each other to do and what we permit government to do.
Let us return to Boudreaux, as he discusses the disparity between the written Constitution and the de facto constitution:
We have at hand ready proof that the constitution is ideology rather than words in a document. Read the document popularly called “the Constitution” and ask if it accurately describes the law of the land. Your answer will almost certainly be no. That document clearly gives to the national government only very limited powers for example, to coin money, to operate post offices, and to supply national-defense services. Today, however, Washington knows almost no restraints on how deeply its regulatory arms reach into the lives of American citizens. No species of economic regulation is off-limits to the national government. Likewise, Washington routinely and without a whiff of apology exercises governmental powers clearly intended by the framers of the Constitutional document to be reserved to each state.
Of course, the de facto constitution does not and cannot represent a coherent ideology, for the reasons discussed above. Like the written Constitution, the de facto one represents a compromise among varied interests. It has been shaped willy-nilly by generations of elected and appointed government officials, for the benefit of the shifting coalitions of special interests that have enabled those governors to govern. FDR, for example, was not elected because he promised to nationalize the means of production and institute socialistic schemes -- but that is what he tried to do after he was elected. A majority (but never a super-majority) of citizens then rallied around FDR out of desperation and in the false belief that his methods were effective.
Boudreaux nevertheless tries to salvage a role for "prevailing ideology":
Those instances in which the Constitutional document has teeth (such as the First Amendment’s prohibition of government interference with the press) are those instances in which the prevailing ideology of the American people happens to correspond with what’s written in the Constitutional document. But in those many instances when the prevailing ideology runs counter to the text of the Constitutional document, the document is toothless.
The apparent survival of freedom of the press has little to do with prevailing ideology, such as it is, and much to do with political power -- not the power of "the people" but the power of special interests. Freedom of the press is fiercely defended by parties with a strong interest in the enforcement of that prohibition (e.g., the press and the liberal elites for whom the press is a mouthpiece), and by courts eager to check executive power. By the same token, a provision of the Constitution that might seem to be of interest to the people -- namely the First Amendment's prohibition of governmental interference with political speech -- has been gutted by campaign-finance "reform" in the service of the nation's most powerful special interest group: members of Congress. (I have just demonstrated public choice theory, which has several proponents and exponents among GMU's economics faculty.)
Returning to Boudreaux:
In the past, when I got furious at the government for doing things clearly prohibited by the Constitutional document, I would declare “That’s unconstitutional!”
I was wrong. Those innumerable government actions that are at odds with the Constitutional document as well as with the principles of a free society are in fact constitutional. These actions are constitutional because the constitution is the actual legal framework of our society—and the actual legal framework in America today grants to government extraordinarily vast powers for intruding into the lives of peaceful people.
And yet, if President Bush were to appoint one or two more Supreme Court justices in the mold of John Roberts and Samuel Alito, the government might suddely find itself with fewer of those "extraordinarily vast powers." The successful appointment of another Roberts or Alito would come about not through the osmotic application of a mythical "prevailing belief system" but, rather, through politics as usual (e.g., public relations "blitzes," horse-trading with Democrat senators, and the enforcement of party discipline among Republican senators.)
Boudreaux proceeds to a hypothetical illustration of the power of "prevailing ideology":
[A]sk what would happen if Congress enacted legislation banning interstate travel by Americans. Can you imagine Americans today respecting such an odious statute? Of course not despite the fact that the Constitutional document does not explicitly prevent Congress from passing such legislation. To avoid enforcement of this statute we wouldn’t have to wait to throw from office the bums who enacted it. Because of the prevailing American ideology, which is hostile to such legislation, this statute would be a nullity from the moment the President signed it.
Here, Boudreaux conjures another Prohibition. He appeals (if only subconsciously) to the popular but misguided notion that Prohibition didn't work. In any event, Prohibtion, which lasted for 13 years, resulted from a century-long campaign against the consumption of alcoholic beverages. It wasn't a sudden, broadly unpopular legislative whim of the type suggested by Boudreaux's example.
There would have to be strong but far from unanimous support for a ban on interstate travel (e.g., among environmentalists, their allies on the Left, and paternalistic politicians of the McCain-Feingold ilk), which such ban would certainly grant exceptions for certain interest groups (e.g., truckers and bus companies). Lobbying and clever media campaigns could do the rest. In any event, even legislation that is not broadly popular will be honored broadly (if not by everyone) if it is seen to be enforced. (Consider, for example, the integration of Southern schools and the registration of black voters, both of which came to be the rule rather than the exception in spite of broad popular opposition to those measures.)
In any event, Boudreaux's resort to an extreme and implausible example tells us nothing about the piecemeal subversion of the Constitution, which owes little to a mythical prevailing ideology and much to leadership, opportunism, political alliances, elite opinion, lobbying, media manipulation, interest-group log-rolling, pork-barrel legislation, judicial fiat, and the "followership" tendencies of most Americans.
Boudreaux next exalts the power of ideas:
It follows that ideas matter enormously. Ideas, not words, are the principal ingredient of the American constitution. If ideas change, so does the constitution. And the only way really to change the constitution is to change the ideas accepted by the great swath of citizens.
Yes, it does matter if ideas change. But it especially matters whose ideas change, and whose interests are served by adopting new ideas. I refer you to the final paragraph of the preceding discussion.
Boudreaux closes with this:
Liberty cannot be secured by asking its foe-the state-for more respect. Liberty cannot be secured at ballot boxes or in courtrooms. Liberty must reside in the hearts of people if it is to reign. And the only way that liberty can find its way into the hearts of people is through the promulgation and circulation of the ideas of liberty. In these ideas lies liberty’s only hope.
The promulgation of the right ideas is necessary but far from sufficient. Anti-statist ideas have gained much respectability in America since the advent of Ronald Reagan, but I cannot see that we have gained liberty as a result. Elected and appointed officials who are dedicated to liberty must come to the fore and lead the way. And then we must be lucky enough to avoid, for a very long time, another Great Depression or similar national trauma, so that the idea of liberty can sink deep roots and withstand the attempts of demagogues and power-hungry politicians to diminish liberty by appealing to fear and building coalitions of anti-liberty interests.
What, then, is the American constitution? It is whatever our governors make it out to be, regardless of the written Constitution. The people, by and large, seem willing to acquiesce in almost any unwritten constitution, as long as they retain the illusion that their particular interests are being served. Most Americans harbor that illusion because they focus on the special benefits which with their votes are bought, while failing to grasp the very high price they pay (in money and liberty) for the benefits received by others. Contrary to the proponents of campaign-finance "reform," the money that corrupts politics flows from the governors to the governed, not the other way around.
It will take more than ideas to reform the unwritten constitution so that it passingly resembles the written one. It will take acts of moral courage and leadership. Those acts must come mainly from generations that have yet to enter the political arena. And those generations must embrace liberty in spite of the misconceptions, propaganda, and outright lies that emanate from the media, the academy, special-interest organizations, the vocal Left, and -- most of all -- from the governing classes, the elites whose agenda they serve, their entourages, and their constituencies.
In the meantime, the best we can hope for is another good Supreme Court justice, or two.