From the White-PillBox: Part 9
The unseen lesson of the U. S. Constitution
Discussion of the Constitution of the United States is often wrapped up in emotion. Freedom supporters feel intense patriotism; a sense of cultural and historical identity. Freedom critics feel anger and despair over the excessive liberties they claim it permits.
If we set emotion aside, and calmly examine the Constitution merely as one of many cultural forces, a White Pill emerges.
But this examination must begin with an understanding of the conditions needed for a free society. When we understand this, we find that none of those conditions requires a government constitution.
The conditions needed for a free society
Overcoming superstition
Mankind’s earliest primitive stages were understandably intertwined with superstition. His mental faculties had evolved, but the scope of his learned scientific knowledge was small. The grand complexity of the world around him could not be explained by his rudimentary experience and abilities. It is not surprising superstition became the best way for man to make sense of the world.
Primitive man could not have been expected to easily think scientifically. Superstitions dominated his thinking, and were limited only by his imagination…all while his reasoning skills were still developing. Even elementary ideas of freedom (self-ownership, individual human rights) would have always had an uphill battle against powerful traditional superstitions.
And a fundamental superstition was the belief that each individual man was inferior to an outside authority. That authority could have taken the form of nature itself, mystical nature-beings, supernatural gods, man-gods, kings, human mystics, or elected officials. The common element was that authority exists outside the individual.
So long as humans believed this superstition (in whatever form it took), any system of organizing society would reflect a deference to outside authority. A free society would only be possible without the impediment of this superstition.
But for a free society to not only be conceivable, but to actually start emerging, a second condition would be needed.
Universality of property rights
This is commonly referred to as equal individual rights. It means there must be a culturally explicit recognition of property rights. It need not be the perfect conception of anarcho-capitalism. But it must sufficiently recognize that: 1) individual humans own themselves, 2) private property ownership is a good thing, and 3) these principles should apply universally, to all people.
These principles have gained acceptance in man’s recent history (albeit slowly and inconsistently). In tandem with this, rational thinking (science) has helped mankind overcome much superstition. While reason has not made as great inroads into the social sciences as the physical sciences, the likelihood of an emergent free society has nonetheless increased.
But for a free society to not only emerge, but persist, a final condition is needed.
Justice norms
I used the term “justice norms” instead of “law”, because “law” implies rules from above. Instead, a free society’s legal system would evolve naturally. It would grow within the framework of reason and individual property rights, accounting for cultural norms that are more or less localized. Their basic purpose would be to provide a structure for conflict avoidance and dispute resolution.
Private (consensual) justice methods must evolve and formalize. This creates the foundation for a private law society.
And once it forms, it will be highly self-persistent. It will prize reason and science, which is a natural guard against a resurrection of superstition. Private property will be ever more secure through technology, making crime much rarer. Together these attributes will all but prevent the reemergence of the concept (or perceived need) for a State.
How does all this involve the U.S. Constitution?
The first glimmer of this White Pill is seen by noticing how the above discussion (on the conditions for a free society) do not require a constitution. However and whenever a free society may emerge, a political document will have no part in it. The resulting norms (legal codes) will not be voted or legislated; they will evolve organically.
As attributes of the State, constitutions can only do what the State and its laws will always do: impede the progress toward a free society.
The false relationship between the U.S. Constitution and freedom
As indicated, emotion is often intertwined with discussions about the Constitution. This is rooted in a false assumption: that it granted freedom.
In fact, as indicated above, it impedes freedom.
But it is not merely patriotic impulses that explain the perceived linkage between the Constitution and greater freedom. The U.S. Constitution was distinctive. If the document has a running theme, it is this: an attempt to limit and disburse power 1.
The Constitution’s limits on power
A detailed study of the growth of U.S. government power over two centuries, while helpful, is not necessary. Its power merely needs to be compared between the framing and today. And one thing is clear: the power held by government then, is minuscule compared to its scope today. The U.S. started as an experiment in the single most limited government in human history. Today that government is the single most powerful one in human history.
Paraphrasing Spooner, if the Constitution did not cause this, then it was powerless to prevent it.
However, this Black Pill is (ironically) undermined by the Constitution itself.
The Constitution’s disbursement of power
This is likely the most relevant part of the Constitution’s relationship to the progress toward a free society.
The Constitution attempted to spread power “horizontally”. Power was disbursed amongst five key entities: a Federal Executive, a Federal Legislature, a Federal Judiciary, the individual States in the union, and the people of those States. Generally, no one of these entities had direct and explicit authority over any other (though it is arguable that the general concept of “the people” held highest sovereignty over all others).
This wide disbursement made inter-governmental consensus unwieldy. A president could veto legislation; the legislature could override a veto; a president could issue an executive order; a court could strike down legislation or an executive order. A State could nullify federal law, or even secede.
And these are examples of powers permitted by the Constitution. States have disregarded federal law outright (accepting fugitive slaves) or passed laws in contradiction to federal law (marijuana).
The irrelevance of representation/democracy
The Constitution also defined how government officials come into their roles (representative voting, electoral voting, presidential assignment, etc.).
Unfortunately, these methods are given far more significance than they deserve.
Recall that the State (and thereby the Constitution) is an impediment to progress toward a free society. The most pertinent factor therefore is the power held by the government, and how it is disbursed in the Constitution. The particular way government personnel assume their roles is immaterial.
This means the Constitution could just as well have assigned roles in other ways, with little impact on how power was disbursed. It could have made the executive, legislative and/or judicial branches hereditary or elected. It could have called for one or more monarchs, hereditary or parliamentary. Elections could have been purely democratic, electoral, or any combinations of these. Government positions could have been limited by gender, wealth, aristocratic standing, education, family, or open to virtually anyone.
The key point is: the impediment posed by the Constitution on the progress toward a free society came from its collective power, and not from how its officials happened to have assumed their roles.
The progress of freedom
With federal branches checking each other, and competing individual States to contend with, the Constitution 2 made it comparatively difficult for power to expand rapidly. Less hampered by government, the relative freedom in the first century of the U.S. permitted an expansion of wealth and technology unparalleled in human history.
In a sense, the fruits of freedom started to win the race against the impediments of government.
The race between freedom and the growing State continues. The fundamental question is whether freedom will progress sufficiently to eventually “crowd out” the State, or will the State grow to a point where it crushes the progress of freedom outright.
The White Pill
This examination of the Constitution provides a reason to be optimistic that freedom will win. The key attribute of the Constitution (disbursement of power) remains sufficiently intact. Although the Federal government is far more powerful than at the founding, the various entities of power remain relatively competitive. In particular, during the COVID experience, the power of the individual States returned to prominence. And secession itself has become a topic of genuine discussion.
So long as the power of the U.S. Federal government remains disbursed, it is restrained in its ability to act. The progress of freedom is impeded to a lesser degree than if it held more concentrated power.
Conclusion
It is a race between the progress toward a free stateless society, and the decline of civilization from an ever-growing State. True, in this race, the natural growth of freedom is impeded by the State.
But in this race, the State impedes itself by the internal competitiveness over its disbursed power. By its very nature, the Constitution is an unwitting handicap on the State.
For purposes of simplicity, I am assuming the most generous interpretation of the Constitution as a self-limiting document: that the motivation of the framers was pure…that they held an unselfish desire to establish a government of limited and disbursed powers; that there was no personal or collective gain at work, either conscious or unconscious. Of course the reality is that the founding generation, like all human beings, had subjective values not necessarily in alignment with overall social betterment.
The former arrangement under the Articles of Confederation was a similarly mild impediment to freedom. However, it had a relatively short existence, making it difficult to examine its relationship to human progress from a wider perspective.