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Module 6: The Constitution of the United States of America

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The Constitution of the United States of America is part of a long line of charters written and implemented to establish strictly limited governmental power that is nonetheless strong enough to secure the rights of the people. As the fundamental law of the land, the text of the Constitution should be known by every American citizen.

In this module, the historical background to the proposal for a new Constitution is examined in detail, as well as the text of the Constitution itself and the struggle between its opponents and its advocates over ratification. The result was by no means a simple victory for advocates of a new national constitution; it was something quite different, a result shaped as much by Anti‐​Federalists as by Federalists. The Constitution as adopted incorporated a Bill of Rights capped by an explicit statement of the limited nature of the powers accorded to the federal government.

In seeking to establish a government powerful enough to secure the rights of the people, the Framers had to confront the problem of how to limit that power and constrain it from expanding whenever expansion might be in the interest of the most powerful factions. To secure that end, the Framers applied the doctrines of the separation of powers, or of “checks and balances,” and maintained the independence of state governments. In addition, such mechanisms as the staggered six‐​year terms of the Senate were designed to temper policy and to insulate it from occasional paroxysms of popular sentiment.

The most profound political thinking and writing are usually called forth during great political and legal conflicts. The debates over the Articles of Confederation and the Constitution proposed as a substitute for them are no exception. The Federalist Papers and the various lesser known Anti‐​Federalist Papers exhibit an extraordinary degree of practical and philosophical sophistication.

This module examines both sides of what is perhaps the most important issue dividing Americans today, one that is still hotly debated in American jurisprudence: does the government have all the powers it might wish to claim, except those specifically denied it in the Constitution, or does it have only those powers specifically enumerated in the Constitution?

Readings to Accompany The Audio

From From Magna Carta to the Constitution: Documents in the Struggle for Liberty: Articles of Confederation (1778) (pp. 63–74); Constitution of the United States of America (1789) (pp. 75–89).

From The Libertarian Reader: James Madison, “Federalist Number Ten” (pp. 13–19); Richard Epstein, “Self‐​Interest and the Constitution” (pp. 42–52)

From Libertarianism: A Primer: Chapter 6, “Law and the Constitution” (pp. 115–26).

Some Problems to Ponder & Discuss

• In Article I, Section 8, of the Constitution, the Congress is granted the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” What role do the terms “necessary” and “proper” play in this clause?

• James Madison, in Federalist No. 10, addresses the problem of limiting the power of majority factions. His answer was not to eliminate the causes of faction, for that would mean eliminating liberty and even human nature itself, but to seek “relief … only … in the means of controlling its effects.” A national government, Madison argued, would be more likely to secure republican liberty from the dangers of majority faction than would local government only: “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” In protecting against the danger of majority faction, however, did Madison at the same time open the door to minority faction, or what we today term “special interests”? Did Madison’s solution also make it more difficult to motivate a majority, for example, taxpayers, with a “common motive” to protect their rights against minorities, in this case, subsidized special interests? What constitutional innovations or amendments might guard against both majority and minority tyranny?

• Is there a distinction between judicial review and nullification of unconstitutional laws, on the one hand, and judicial lawmaking or usurpation of the legislative power, on the other? Are there other mechanisms, in addition to judicial review, to combat or resist usurpation of or encroachment on the rights of the people by the other branches of government?

• In Article I, Section 8, of the Constitution, the Congress is granted 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.…” Does this mean that the Congress has been granted the power to take any act it believes will “provide for the … general Welfare”? Is there a contrast between “general welfare” and “particular welfare”? Is the term “general” a limiting or an empowering term? What is the meaning of this section?

Suggested Additional Reading

Roger Pilon, “Restoring Constitutional Government,” Cato’s Letter No. 9 (Washington: Cato Institute, 1995). This pamphlet, available from the Cato Institute, explains how the Constitution established a government of delegated, enumerated, and thus limited, powers and how to restore such constitutional government today.

Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (many editions). Few people read The Federalist Papers in their entirety; many were written on topics of little interest today or on very specific issues of the Constitution then being debated. The papers that definitely deserve special attention today include No. 1 (introduction to the structure and objectives of the papers); No. 10 (union as a safeguard against domestic faction and insurrection—included in The Libertarian Reader); No. 45 (assuring that the powers and rights of the states have been maintained); No. 46 (ensuring that the states have been left ample power to counteract an ambitious national government); No. 47 (arguing for the separation of powers); No. 48 (arguing that overlapping powers facilitate separation of powers); No. 51 (arguing for checks and balances, reinforcing the separation of powers through self‐​interest); No. 78 (arguing for the powers of the judiciary to protect us—via judicial review—from majoritarian excesses); and No. 84 (arguing that the doctrine of enumerated powers renders a bill of rights unnecessary).

The Anti‐​Federalists: Writings by the Opponents of the Constitution, Herbert J. Storing, ed. (Chicago: University of Chicago Press, 1985). As Herbert Storing and other scholars have pointed out, the so‐​called Anti‐​Federalists have an equal claim to being the authors of our constitutional system, through their insistence on the doctrine of enumerated powers and on the Bill of Rights, including the Ninth and Tenth Amendments. Some of the more relevant papers, warning of the dangers of centralized powers and stressing the need for decentralization and legal guarantees against the abuse of power, include the Letter from “Centinel” (pp. 13–20); Letters from “A Federal Farmer” (pp. 32–95); Essays of “Brutus,” 18 October 1787 (pp. 108–17) (contrasting confederal with national government), 29 November 1787 (pp. 127–32) (on the powers of Congress), 13 December 1787 (pp. 133–38), 31 January 1788, 7 February 1788, 14 February 1788, 21 February 1788, 28 February 1788, 6 March 1788, and 20 March 1788 (pp. 162–87) (on judicial powers); 10 April 1788 (pp. 187–91) (on the Senate); Letters of “Agrippa,” 23 November 1787 (pp. 229–30) (contrasting limited government with absolute government), 14 December 1787 (pp. 239–40) (on the need for a “declaration of rights”).

For Further Study

Stephen Macedo, The New Right vs. the Constitution (Washington: Cato Institute, 1987). Macedo carefully examines the original intent jurisprudence of the “new right” school of constitutional interpretation, which argues for an essentially untrammeled majoritarianism. Macedo argues for interpreting the Constitution in light of the theory of rights and government that inspired the Founders, rather than as merely a structure for the exercise of democratic power.

Edwin S. Corwin, The “Higher Law” Background of American Constitutional Law (Ithaca: Cornell University Press, 1955). Corwin shows how the American Constitution rests on a foundation of natural and inalienable individual rights.

From The Libertarian Reader: Lysander Spooner, “The Constitution of No Authority” (pp. 154–60). This essay pushes to the limit the idea of a government based on the consent of the governed and raises important and difficult problems concerning the foundations of political authority, with special attention to the U.S. Constitution.

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