Notice: states aside, regarding the proposed new government, we are right back in the state of nature, about to “ordain and establish” a constitution to authorize it and bring it into being. All power rests initially with “we the people.” We bring the constitution and the government that follows into being through ratification. We give it its powers, such as we do. The government does not give us our rights. We already have our rights, natural rights, the exercise of which creates and empowers this government.

How, then, does Madison strike the balance between power and liberty in service of those aims? First, through federalism: Power was divided between the federal and state governments, with most power left with the states, especially the general police power — the basic power of government to secure our rights, as just discussed. The powers we delegated to the federal government concerned national issues like defense, free interstate commerce, rules for intellectual property, a national currency, and the like.

Second, following Montesquieu, Madison separated powers among the three branches of the federal government, with each branch defined functionally. Pitting power against power, he provided for a bicameral legislature, with each chamber constituted differently; a unitary executive to enforce national legislation and conduct foreign affairs; and an independent judiciary with the implicit power to review legislative and executive actions for their constitutionality — a novel institution at that time, and a crucial one as time went on.

Third, although the Constitution left most of the rules for elections with the states, it provided for periodic elections to fill the offices set forth in the document, thus leaving ultimate power with the people.

But while each of those provisions and others struck a balance between power and liberty, the main restraint on overweening government took the name of the doctrine of enumerated powers. And I can state it no more simply than this: if you want to limit power, don’t give it in the first place. We see that doctrine in the very first sentence of the Constitution, after the Preamble: “All legislative Powers herein granted shall be vested in a Congress .…” By implication, not all powers were “herein granted.” Look at Article I, section 8, and you will see that Congress has only 18 powers or ends that the people have authorized. And the last documentary evidence from the founding period, the Tenth Amendment, states that doctrine explicitly: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, the Constitution creates a government of delegated, enumerated, and thus limited powers. If a power is not found in the document, it belongs to the states — or to the people, never having been given to either government.

As noted earlier, when the Constitution was sent out to the states for ratification, it met stiff resistance as Anti‐​Federalists thought it gave too much power to the national government. Only after the Federalists agreed to add a bill of rights was it finally ratified. During the first Congress in 1789, Madison drafted 12 amendments, 10 of which were ratified in 1791 as the Bill of Rights. That document sets forth rights that are good against the federal government, such as freedom of religion, speech, press, and assembly, the right to keep and bear arms, to be secure against unreasonable searches and seizures, to due process of law, to compensation if private property is taken for public use, to trial by jury, and more.

But it is important to note that the Bill of Rights was, as Justice Scalia (2017: 161) said, an “afterthought.” Unlike with many European constitutions, which begin with a long list of rights, many aspirational, the Framers saw the Constitution’s structural provisions as their main protection against overweening government (National Lawyers Convention 2017). And on that score, it is crucial to mention the Ninth Amendment, which reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The history behind that amendment is instructive. During the ratification debates, there were two main objections to adding a bill of rights. First, it would be unnecessary. “Why declare that things shall not be done,” asked Alexander Hamilton ([1788] 1961), “which there is no power to do?” Notice that he was alluding to the enumerated powers doctrine as the main protection for our liberties: where there is no power, there is a right.

And second, it would be impossible to enumerate all of our rights, yet, by ordinary principles of legal construction,3 the failure to do so would be construed as implying that only those rights that were enumerated were meant to be protected. To guard against that, the Ninth Amendment was written. It reads, again, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Notice: “retained by the people.” You can’t retain what you don’t first have to be retained. The allusion is to our natural rights, which we retained when we left the state of nature, save for those we gave up to government to exercise on our behalf, like the right to enforce our rights.

For a proper understanding of the Constitution, the importance of the Ninth Amendment, which speaks of retained rights, and the Tenth Amendment, which speaks of delegated powers, cannot be overstated (Pilon 1991: 1). Taken together, as the last documentary evidence from the founding period, they recapitulate the vision of the Declaration. We all have rights, enumerated and unenumerated alike, to pursue happiness by our own lights, to plan and live our lives as we wish, provided we respect the rights of others to do the same; and federal and state governments are there to secure those rights through the limited powers we have given them toward that end. There, in a nutshell, is the American vision, reduced from natural to positive law.

But apart from our failure too often to abide by that vision, there was a structural problem with the original design. There were too few checks on the states, where most power was left. And the reason was slavery. To achieve unity among the states, the Framers made their Faustian bargain. They knew that slavery was inconsistent with their founding principles. They hoped it would wither away in time. It did not. It took a brutal civil war to end slavery and the Civil War Amendments to “complete” the Constitution by incorporating at last the grand principles of the Declaration, especially equality before the law (Reinstein 1993).

The Thirteenth Amendment, ratified in 1865, rendered slavery unconstitutional. The Fifteenth Amendment, ratified in 1870, protected the right to vote from being denied on account of race. And the Fourteenth Amendment, ratified in 1868, defined federal and state citizenship and provided federal remedies against a state’s violating the rights of its own citizens.4

Unfortunately, only five years after the Fourteenth Amendment was ratified, a deeply divided 5–4 Supreme Court eviscerated the principal font of substantive rights under the amendment, the Privileges or Immunities Clause.5 Thereafter the Court would try to do under the less substantive Due Process Clause what was meant to be done under privileges or immunities, and the misreading of the Fourteenth Amendment has continued to this day. Among other things, the upshot was Jim Crow racial segregation in the South, which lasted until the middle of the 20th century.

Progressivism

We turn now to the great ideological watershed, the rise of Progressivism at the end of the 19th century. Coming from the elite universities of the Northeast, progressives rejected the Founders’ libertarian and limited government vision (Pestritto and Atto 2008). They were social engineers, planners enamored of the new social sciences. Insensitive when not hostile to the power of markets to order human affairs justly and efficiently, they sought to address what they saw as social problems through redistributive regulatory legislation. They looked to Europe for inspiration: Bismarck’s social security scheme, for example, and British utilitarianism, which in ethics had replaced natural rights theory. The idea was that policy, law, and judgment were to be justified not by whether they protected our natural and moral rights but by whether they produced the greatest good for the greatest number — often by giving rights to some, taken from others.

A particularly egregious example of that rationale concerned a sweetheart suit brought against a Virginia statute that authorized the sterilization of people thought to be of insufficient intelligence.6 Part of the bogus “eugenics” movement, the law was designed to improve the human gene pool. Writing for a divided Supreme Court in 1927, the sainted Justice Oliver Wendell Holmes upheld the statute, ending his short opinion with the ringing words, “Three generations of imbeciles are enough.” There followed some 70,000 sterilizations across the nation.

Some of what the progressives did was long overdue, like promoting municipal health and safety measures and attacking corruption. Yet they also sowed the seeds for later corruption, especially through regulatory schemes ripe for special interest capture, replacing markets with cartels (Epstein 2006). And their record on racial matters was abysmal (Sowell 2016).

During the early decades of the 20th century, progressives directed their political activism mostly at the state level, but they often failed as the courts upheld constitutional principles securing individual liberty and free markets. With the election of Franklin Roosevelt in 1932, however, progressive activism shifted to the federal level. Still, during the president’s first term the Supreme Court continued mostly to uphold limits on federal power, finding several of Roosevelt’s programs unconstitutional.

With the landslide election of 1936, however, things came to a head. Early in 1937, Roosevelt unveiled his infamous Court‐​packing scheme, his threat to pack the Court with six new members. Uproar followed. Not even an overwhelmingly Democratic Congress would go along with the plan. Nevertheless, the Court got the message. The famous “switch in time that saved nine” justices followed. The Court began rewriting the Constitution, in effect, not through amendment by the people, the proper way, but by reading the document as it hadn’t been read for 150 years — as authorizing effectively unlimited government (Leuchtenburg 1995).

The Court did that rewrite in three basic steps. First, in 1937 it eviscerated the very centerpiece of the Constitution, the doctrine of enumerated powers. Then in 1938 it bifurcated the Bill of Rights and gave us a bifurcated theory of judicial review. Finally, in 1943 it jettisoned the nondelegation doctrine. Let me describe those steps a bit more fully so you can see the importance of recognizing and adhering to the theory that stands behind and informs a constitution.

The evisceration of the doctrine of enumerated powers involved three clauses in Article I, section 8, where Congress’s 18 legislative powers are enumerated: the General Welfare Clause, the Commerce Clause, and the Necessary and Proper Clause. All were written to be shields against government. The New Deal Court turned them into swords of government through which the modern redistributive and regulatory state has arisen.

The first of Congress’s enumerated powers, where the General Welfare Clause is found, authorizes Congress, in relevant part, to tax to provide for the “general Welfare of the United States.” As Madison wrote in Federalist No. 41, that qualifying language was simply a general heading under which Congress’s 17 other powers or ends were subsumed, for which Congress may tax, but only if they serve the general welfare of the United States, not particular or local welfare.

Instead, the New Deal Court read the clause as an independent power authorizing Congress to tax for whatever it thought might serve the “general welfare.”7 That reading could not be right, however, because it would enable Congress to tax for virtually any end, thus rendering Congress’s other powers superfluous, as Madison, Jefferson, and many others noted when the issue arose early in our history. Indeed, it would turn the Constitution on its head by allowing Congress effectively unlimited power. Such is the result from ignoring the document’s underlying theory of limited government.

Similar issues arose that year with the Commerce Clause, which in relevant part authorized Congress to regulate interstate commerce. Recall that, under the Articles of Confederation, states had begun erecting tariffs and other protectionist measures, and that was leading to the breakdown of free trade among the states. Thus, the Framers gave Congress the power to regulate — or make regular — commerce among the states, largely by negating state actions that impeded free trade, but also through affirmative actions that might facilitate that end (Barnett 2001).

Over several decisions, however, beginning in 1937,8 the New Deal Court read the Commerce Clause as authorizing Congress to regulate anything that “affected” interstate commerce, which of course is virtually everything. Thus, in 1942 the Court held that, to keep the price of wheat high for farmers, Congress could limit the amount of wheat a farmer could grow, even though the excess wheat in question in the case never entered commerce, much less interstate commerce, but was consumed on the farm by the farmer and his cattle. The Court held that the excess wheat he consumed himself was wheat he would otherwise have bought on the market, so “in the aggregate” such actions “affected” interstate commerce.9 Such were the economic theories of the Roosevelt administration.

The last of Congress’s 18 enumerated powers authorizes it “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Thus, the clause affords Congress instrumental powers — the means for executing its other powers or pursuing its other enumerated ends. “Necessary” and “proper” are words of limitation, of course: Not any means Congress desires will do. Yet the New Deal and subsequent Courts, until very recently, have hardly policed those limitations (Blumstein 2012: 86).10

Turning now to the second step, despite the demise in 1937 of the doctrine of enumerated powers, one could still invoke one’s rights against Congress’s expanded powers. So to address that “problem,” the New Deal Court added a famous footnote to a 1938 opinion.11 In it, the Court distinguished two kinds of rights: “fundamental,” like speech, voting, and, later, certain personal rights; and “non‐​fundamental,” like property rights and rights we exercise in “ordinary commercial relations.” If a law implicated fundamental rights, the Court would apply “strict scrutiny” and the law would likely be found unconstitutional.12 By contrast, if nonfundamental rights were at issue, the Court would apply the so‐​called rational basis test, which held that if there were some reason for the law, if you could conceive of one, the law would be upheld. Thus was economic liberty reduced to a second‐​class status. None of this is found in the Constitution, of course. The Court invented it from whole cloth to make the world safe for the New Deal programs (Pilon 2003).

Finally, in 1943 the Court jettisoned the nondelegation doctrine,13 which arises from the very first word of the Constitution: “All legislative Powers herein granted shall be vested in a Congress .…” Not some; all. As government grew, especially during the New Deal, Congress began delegating ever more of its legislative power to the executive branch agencies it was creating to carry out its programs. Some 450 such agencies exist in Washington today. Nobody knows the exact number.

That is where most of the law Americans live under today is written, in the form of regulations, rules, guidance, and more, all issued to implement the broad statutes Congress passes. Not only is this “law” written, executed, and adjudicated by unelected, non‐​responsible agency bureaucrats — raising serious separation‐​of‐​powers questions — but the Court has developed doctrines under which it defers to agencies’ interpretations of statutes, thus largely abandoning its duty to oversee the political branches. Governed largely today under administrative law promulgated by the modern executive state, we are far removed from the limited, accountable government envisioned by the Founders and Framers (Hamburger 2014, 2017).

This completes my overview of American constitutional theory and history. From it, as I mentioned early on, the main lesson to be drawn is that culture matters. The Founders and Framers were animated by individual liberty under limited government. When the post–Civil War Framers revised our original federalism, they did it the right way, by amending the Constitution to make it consistent with its underlying moral and political principles. The New Deal politicians, having less regard for the Constitution and its underlying principles, rejected that course, choosing instead to browbeat the Court into effectively rewriting the Constitution, undermining its moral and political principles in the process.

But don’t take my word for it. Here is Franklin Roosevelt (1935), writing to the chairman of the House Ways and Means Committee: “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.” And here is Rexford Tugwell (1968: 20), one of the principal architects of the New Deal, reflecting on his handiwork some 30 years later: “To the extent that these [New Deal policies] developed, they were tortured interpretations of a document intended to prevent them.” They knew exactly what they were doing. They were turning the Constitution on its head.

Thus, the problem today is not, as so many America progressives think, too little government. It is too much government, intruding on our liberties and driving us ever deeper into debt. And it isn’t as if our Founders did not understand that. As Jefferson famously wrote, “The natural progress of things is for liberty to yield, and government to gain ground” (Boyd 1956: 208–10). The remedy for that “progress” is a good constitution, but it must be followed. And that takes good people at every stage — including, ultimately, the people themselves.

A Few Implications for European Constitutionalism

So what lessons might we draw from the American experience for European constitutionalism? Recall my mentioning earlier of being struck by the tension in the EU between exclusion and inclusion in its many forms, including individualism and collectivism. As we have seen, that same tension runs through America’s constitutional history as well. To address deficiencies in the Articles of Confederation, the original Constitution moved toward greater inclusion to form “a more perfect Union.” But the resulting federalism did not get the balance right either. It left too much power with the states, enabling the southern states to continue enforcing slavery. So the Civil War Amendments increased the inclusion, correctly. The adjusted federalism gave more power to the federal government, enabling it to block states from oppressing their own citizens — a higher power checking a subsidiary power.

But that balance, reflecting the nation’s underlying principles, was upended again by the far more inclusive New Deal constitutional revolution. Giving vastly more power to the federal government, contrary to the nation’s limited government principles, this change swept ever more Americans into public programs, leading many to want out. They wanted to be excluded from the socialization of life, as reflected by the rise of the conservative and libertarian movements in the second half of the 20th century.

Are there parallels with post‐​War developments in Europe? To this sometime‐​student of European affairs, there seem to be; but the inclusion that began with the 1951 Treaty of Paris and continued through the many treaties since makes it difficult if not impossible to speak of three distinct periods, as in America, much less point to a “golden mean” in this evolution akin to America’s post–Civil War settlement. In recent years, however, the impetus toward exclusion, in many forms, is unmistakable, Brexit being only the most prominent example, the ongoing refugee resettlement crisis being another.

Federalism within nations is a delicate balance. Federalism among sovereign nations, which is what the EU amounts to, is far more difficult, especially when cultural differences loom large. And on that score, here is a paradox. Europeans have always been more comfortable than Americans with collectivization in the form of the welfare state, certainly within their respective nations (Rhodes 2018). But with collectivization among nations, cultural differences — rich and poor being only one axis — can easily exacerbate the cooperation that is required if collectivization is to work at all, much less with any measure of efficiency. The evidence suggests that the EU has gone too far in that direction. At the same time, the evidence is equally clear that the failure to make EU border security an EU responsibility, leaving it instead to individual members, has raised serious problems, too (Rohac 2016).

In America, border security became a federal government function once the Constitution was ratified. Within our borders, however, to keep states honest, the Founders instituted competitive federalism, whereby states compete for the allegiance of citizens; and it has largely worked as states with high taxes and excessive regulations lose firms and people to states with low taxes and reasonable regulations. People vote with their feet, much as in the Schengen Area. But the federal income tax plus the direct election of senators, both enacted as constitutional amendments in 1913 and both promoted by progressives, unleashed cooperative federalism whereby federal and state officials collude, using federal funds and enacting federal regulations, to undercut state autonomy and the discipline that competitive federalism was meant to secure (Greve 2012; Buckley 2014).

Earlier I said that you cannot understand the American Constitution unless you understand the theory behind it. Well, what is the theory behind the treaties that compose the EU Constitution? Peace through trade and cooperation, yes — given Europe’s long history of wars. But beyond that, what? We have seen how a radical shift in the climate of ideas in America, especially in the direction of collectivism, has led, as many lonely voices predicted, to a reaction that today reflects a deeply divided nation, unable to restrain its appetite for “free” goods and services, even in the face of crushing debt. The divisions surfacing recently in Europe are no accident. People and peoples yearn to breathe free — in an earlier understanding of that idea. The balance needed to ensure that freedom may be difficult to find. But to discover it, as we celebrate Italy’s Constitution today and reflect on Italy’s place within the larger European Community, we could do no better than to repair to the First Principles that are the very foundation of civilized nations.

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1 That is not to say that, as a practical matter, elements of the welfare state may not be justified as a last resort. Rather, such elements are not brought into being “by right.” Put differently, there is a strong moral presumption against such measures — against forcing people to assist others through taxation or otherwise — and a strong presumption in favor of voluntary private assistance and private charity.

2 The classic arguments are by Buchanan and Tullock (1962).

3Expressio unius est exclusio alterius.

4 Prior to that time, the Bill of Rights applied only against the federal government. Barron v. Baltimore, 32 U.S. 243 (1833).

5 Slaughterhouse Cases, 83 U.S. 36 (1873).

6 Buck v. Bell, 274 U.S. 200 (1927).

7 Helvering v. Davis, 301 U.S. 619 (1937).

8 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

9 Wickard v. Filburn, 317 U.S. 111 (1942).

10 For a recent exception, see NFIB v. Sebelius, 567 U.S. 519 (2012).

11 United States v. Carolene Products Co., 304 U.S. 144 (1938).

12 To satisfy the strict scrutiny test, the government must have a “compelling interest,” and the means it employs must be “narrowly tailored” to serve that interest.

13 National Broadcasting Co. v. United States, 319 U.S. 190 (1943).