But I am a Strict Constitutionalist

I got asked in the comments section in the previous post (Chambless on Hamilton: Round 2):

In defense of libertarian scholars, you dont see a problem in having a liberal interpretation of the Constitution? These are strict rules put in place on the central government, how can you just have a liberal interpretation and ignore some of the most fundamental rules that limits the government to protect individual rights?

I am being criticized for advocating the “liberal interpretation” of the Constitution, as to say, I advocate the position that the Constitution does not have this “end all, be all” mentality on the structures of government. Yes, I support this position, but it is the position advocated by the defenders of the Constitution in The Federalist Papers. Sure there are certain general rules that the government cannot just change, but the details of government, of course they can. As I said in the previous post, the Founding Fathers did not know of problems that America would face in the future, nor did they pretend to know, which is why the Constitution is so vague and short, especially compared to other constitutions.

The way I derive this position though is not from arm chair logic though, i derive it straight from the Constitution and I also use The Federalist Papers help out with what specific things imply, since these were the main set of papers that defended the Constitution and advocated for its ratification. So I am being a “strict constitutionalist”. This was how the Constitution is supposed to be viewed.

We have Tea Partyers and other right wingers claiming this label, but without evidence to back up their views. They think they are the actual strict constitutionalists for advocating the position of “if it does not say it directly, it does not go!” They protest wearing those American colonist costumes assuming this is how the Constitution, and its Founding Fathers that influenced its passing, was supposed to be interpreted.

Though, little do they know that it is the “liberal interpretation” that is the strict constitutionalist view

 

Epstein on the Role of the Constitution

So Richard Epstein got interviewed by Russ Roberts over at EconTalk about the Constitution. Yes, more libertarians talking about the Constitution, my favorite. I might comment on the whole interview later but I want to discuss the first question and answer to this interview.

Roberts asked Epstein, “How has the role of the Constitution changed in the United States since the founding? How has our understanding of it evolved, good and bad? And that, of course, we could spend 7 or 8 hours on, but why don’t you open us up with a general overview of the biggest trends.”

Epstein response is reasonable I guess, though it is very general, so it is hard to point out what he means on certain points.  Of course one major thing I disagree with him on his his view that Alexander Hamilton championed protection tariffs. Not only is there not evidence to support that Hamilton ever supported protection tariffs, but Hamilton also directly refuted protection tariff policies (look at “Would Hamilton Advocate Protectionism?” for more info).

Epstein is also right that the Constitution was drafted as a way to deal with the disadvantages produced in the Articles of Confederation. But then here is where he puts his libertarian spin. Starting at 4:20ish he states:

The Constitution was drafted as a way to get rid of the defects in the Articles of Confederation, rather than to create the modern welfare and New Deal State.

In a way, this is true but misleading. We get the implication that this so called welfare state was against Constitutional principles, for it was not drafted for that reason. And this is how Epstein concludes his summary:

Its a huge difference.. a classical liberal state, small government, strong property rights to a large state with heavy administration law, concurrent jurisdiction and lots of discretion thats being given to agents of all levels of government. Its a really very very big change that took place.**

Over at Cafe Hayek, Roberts copied and pasted the first question he asked Epstein and told his readers what they thought Epstein answer was. Roberts said, “I was prepared for him to say that over time, we’ve increasingly ignored the Constitution and done whatever we want. That wasn’t his answer.”

But that was exactly Epstein’s answer to Roberts’ question. Epstein is basically saying, “The Constitiuion was drafted for classical liberal purposes, but over time the American government has turned into this welfare New Deal state! Its a really very very big change.” In essence, Epstein is trying to get the readers to note that this “welfare New Deal state” was not the reason why the Constitution was drafted, so therefore this “welfare New Deal” state goes against Constitutional principles that the American Founding Fathers envisioned. In other words, Epstein is saying that over time, we have lost sight on what the implications of the Constitution were.

I obviously disagree with this answer too. Even back then, people did not know how big the size of government should be. There was always constant debate about that, let alone what constituted the size of government as big or small. For example, the Anti-Federalists thought that the more centralized Constitutional government was too big, even comparing it to the monarchial British system.

I would have answered Roberts’ question differently. I would have said something like, “The Constitution was drafted (and authors of The Federalist Papers defended its ratification) because many were concerned that under the Articles of Confederation, America was going to crumble somehow, at worst, it would have a civil war with the different ‘confederacies’ fighting because the structure of the central government was too loose. It was drafted, in other words, to preserve the Union at all costs. In modern times, many peoples’ understanding of the Constitution is that of viewing the Constitution as a document of representing a “classical liberal” or a limited government view, and that there is no room in the Constitution giving the government the power to adapt to unexpected change as time goes on. This is to say, granting the government power to adapt to the problems of the time in the attempt to solve them.”

I only had time to listen to the first 6 minutes or so, so I can’t comment on the rest of the interview, though I will finish hearing it sometime soon.

** I like Epstein’s “really very very” emphasis

Madison, Hamilton, and Implied Powers

I just finished reading Alexander Hamilton (2004) by Ron Chernow and it is by far one of the best biographies I have ever read. Chernow is a writer that makes one feel like they have a personal connection to the particular person he is writing about.

What is particular interesting is the fact that even back then, the founding fathers of this country debated on what was constitutional. At least for me it is interesting because we had statesmen and politicians that had direct influence on the development of the Constitution, and yet there were debates on what the Constitution meant and what we can imply from its meaning.

In this video, Chernow talks very vaguely about his book and of Hamilton, which is worth a watch. But I have a little quibble, at 17:42, Chernow contradicts himself in saying, “He [Alexander Hamilton] comes up with the so called theory of implied powers.” Hamilton did no such thing, if anything, he can be seen as a person to use implied powers of the Constitution quite often. It was James Madison to actually develop the theory of implied powers, and Chernow makes this claim in his book, here is Chernow:

Later defined as a ‘strict constructionist’ of the Constitution, Madison set forth the doctrine of implied powers that Hamilton later used to expand the powers of the federal government. It was Madison who wrote in Federalist number 44, ‘No axiom is more clearly established in law or in reason than that wherever the end is required, the means are authorized.’ At this juncture, they could make common cause on the need to fortify the federal government and curb rampant state abuses (Chernow 2004: 252). (my emphasis)

It is important to note Madison’s Jeffersonian interpretation of the Constitution (what would make Madison a strict constructionist of the Constitution) only came after he wrote the Constitution and The Federalist Papers. So while Madison and Hamilton did have a huge feud on what was constitutional later on, it is clear that during the time of the development of the Constitution, the two were similar philosophically (Chernow 2004: 223). It follows that it was Madison that changed his views about what the Constitution implied and Hamilton staying the most consistent of the two on the view of a strong central government. The change in views later on was a personal blow to Hamilton. Once good friends and political allies, now bitter rivals that represented opposing views on just about everything. In other words, Hamilton saw Madison’s opposition as “a perfidious desertion of the principles which [Madison] was solemnly pledged to defend,” (Chernow 2004: 306).

What is funny is that Madison’s own defense of the necessary and proper clause in paper 44 came to bite Madison “in the behind” when he switched to his Jeffersonian stance. Madison, in opposition to a national bank, stated that after reviewing the Constitution, ‘it was not possible to discover in it the power to incorporate a bank.’ Elias Boudinot, a Federalist Congressman, responded by reading the “necessary and proper” clause and how paper 44 of The Federalist Papers defends the clause (remember, Madison wrote that paper), and explicitly stating the ‘No Axiom is more clearly established…” quote (Chernow 2004: 350). One could only imagine that Madison felt embarrassingly defeated by his very own words.

References

Chernow, Ron. 2004. Alexander Hamilton. New York:The Penguin Press.

Hamilton, Alexander, John Jay, and James Madison. [1787] The Federalist Papers. New York: The Modern Library.