Religion & Liberty Online

The Decline and Fall of Constitutional Law

Independence Hall in Philadelphia, PA (Image credit: Shutterstock)

The decline in federalism and personal freedoms has been slow and steady. Its course can be marked. But can it be reversed?

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People around the world are grossly misinformed about the nature and character of government. They do not understand the need for limits on government for it to remain a useful instrument and not a coercive one. Nor do they understand how the concentration of power in government tends toward corruption and tyranny. To varying degrees, governments worldwide routinely abuse the power they wield to the detriment of the people living under them. Even in the U.S., where freedom and liberty are celebrated, the advancement of a Leviathan state has been on the march for over a hundred years.

The United States of America was founded as a federated constitutional republic. The framers intended to bind the actions of government officials by a written constitution that restricted what they could do. Unfortunately, the current political crisis is that this government has broken loose from its constitutional bondage and is now running amok. As British political philosopher Michael Oakeshott observed:

To some people, “government” appears as a vast reservoir of power which inspires them to dream of what use might be made of it. They have their favorite projects, of various dimensions, which they sincerely believe are for the benefit of mankind, and to capture this source of power, if necessary to increase it, and to use it for imposing their favorite projects on their fellows is what they understand as the adventure of governing men. They are, thus, disposed to recognize government as an instrument of passion; the art of politics is to inflame and direct desire.

Two questions come immediately to mind. First, what inspired the framers of the U.S. Constitution to establish a limited government? Second, why and how have those limits been eroded over time?

Throughout human history, those possessing the power of government have tended to abuse that power. Indeed, the normal situation for most people is to live under the rule of some monarch or overlord. The extent of the abuse the people suffered was limited only by the degree of benevolence expressed by the individual ruler. Some were better than others, and some were tyrannical beasts, as was the case of Nero in the Roman Empire and Stalin in the old Soviet Union.

The push to recognize the value of individual freedom and liberty was the result of the spread of the Judeo-Christian religion and the efforts of numerous scholars and writers. Among them were the Spanish Scholastics, mainly at the school of Salamanca during the 16th century as they chastised the Spanish crown for abusing the people groups in Central and South America. Juan de Mariana went so far as to argue that tyrannicide is not a sin. In England, John Milton made the case for freedom of speech by arguing that truth never needs to be licensed by the state. In addition, John Locke’s Two Treatises of Government made a strong case for the natural rights of the individual. In the first treatise, he appealed to Scripture to dismantle the notion that the king is God’s vicar on earth with its assumption of absolutism. In the second, Locke laid out the logical case for the individual rights of life, liberty, and property. As he wrote, “The state of nature has a law of nature to govern it, which obliges everyone: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”

The combination of the spread of natural law thought and Christianity in North America bubbled up into a growing desire to establish a government whose power was restricted in order to secure the universal rights of the individual person. This desire led to the Declaration of Independence, by means of which the colonists cut ties with England based upon the observation that the king had abused his power over the colonies. The resulting war for independence was successful and the Founding Fathers of the United States worked to establish a government that would recognize the rights of the people but also secure those rights by limited governmental force.

As James Madison put the matter in Federalist No. 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must enable the government to control the governed; and in the next place oblige it to control itself.” This point of view was widely shared. Moreover, it was important to the Founders to restrict government by way of a written constitution. As Thomas Jefferson put the matter, “I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”

While individual freedom and liberty were not fully secured, as evidenced by the chattel slave trade in the South and by Alexander Hamilton’s desire to promote special business privilege with government power, nevertheless, the citizenry in the newly formed United States were as free a people as had ever existed in world history.

“The development of natural-law ideas … attained its culmination at the end of the eighteenth century. After that time we can begin to trace a process of collapse and disintegration in the natural-law system of thought.” So wrote Otto Gierke. This process was the result of the rise of legal positivism. In the early 19th century, the British political philosopher Jeremy Bentham argued that there is no such thing as natural law other than the fact that people’s lives are governed by pleasure and pain. He reduced this to the notion of utility and argued that laws should be based on a hedonistic calculus. Thus, any good law would be one that produced more pleasure than the pain it caused. This idea gained traction throughout the century and was effectively spread by Bentham’s most famous student, John Stuart Mill. Utilitarianism made exceptional headway as it spread through the English study of economics by way of welfare analysis. While Bentham and Mill were generally favorably disposed to free enterprise, there is nothing in utilitarianism that necessarily embraces it. At root, free enterprise is the logic of private property law and that is best defended by the natural law argument. However, if someone can argue that violating one’s natural rights can promote the so-called common good, then violating that right is seen as justified.

Legal positivism gained momentum with the rise of evolutionary thought beginning in the middle of the 19th century. There were numerous writers contributing to this view of the world, not only (most famously) Charles Darwin but also Karl Marx, Herbert Spencer, and others. The focus on change over time tended to eclipse the importance of identifying and relying on fixed principles. Increasingly, numerous people began putting forward their own notions of how to achieve economic and social progress. The spread of this sort of utopian thinking gave added momentum to the spread of legal positivism. Indeed, the spawning of the common-school movement became incorporated into legal positivism as people began to conceive of education as means of socializing children and fitting them for the collective, rather than teaching them to read, write, and think logically.

While the term “socialism” never sold well in the U.S., the concept of progress did. Thus those embracing the use of the state for the purpose of collectivizing people began to refer to themselves as progressives. For the religious skeptic, the state became their god as they embraced the Hegelian dialectic. As Hegel put the matter, “The state is the Divine Idea as it exists on earth.” This point of view made its way into Christianity as numerous theologians threw off long-held Christian doctrines in favor of progressive theology. They rejected the doctrines of original sin, the deity of Christ, and the atonement. Out of this the social gospel movement was born.

Among the theologians embracing this point of view, perhaps the leader of the movement, was Walter Rauschenbusch. He openly criticized orthodox Christianity for being too focused on the individual person. In fact, historic Christianity has always concentrated on the salvation of individual people, who are called to confess their individual sins and to accept God’s forgiveness based upon the atoning sacrifice of Jesus Christ. For Rauschenbusch, this was too focused on heaven and on personal piety. He believed that salvation (if you can call it that) should be directed to the state provision of social goods and the “socializing” of property. In his own words, “By ‘socializing property’ we mean, then, that it is made to serve the public good, either by the service its uses render to public welfare, or by income it brings to the public treasury.” In saying this, he set aside God’s commandment against theft and asserts that government can use its power to effectively take property from people by the force of law. Thus he turns government from its legitimate purpose to an illegitimate one.

As this worldview spread, many pastors and teachers turned away from the Gospel proper and toward the idea of creating a heaven on earth by using the state to accomplish the change. While they continued to call themselves Christians, they had, in faith, departed from the historic faith. (J. Gresham Machen, who remained an orthodox, Reformed theologian, wrote Christianity and Liberalism in the 1920s specifically to point out this fact.) They were in essence attempting to turn Marxism into Christianity. But the reality is that you cannot separate Marxism from its atheism.

Politically, the U.S. Constitution stood as a major obstacle to progressivism, since it set out clear restrictions on government action. In order to move progressivism forward, proponents had to take aim at it. Thus, they promoted the idea that the Constitution was old-fashioned and could not be made to fit a modern nation. They argued that what we needed was a “living” constitution. Among those arguing thus was Woodrow Wilson, who proposed that:

Governments are living things and operate as organic wholes. Moreover, governments have their natural evolution and are one thing in one age, another in another. The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part or organ of it to a dominating force; but no government can be successful constructed upon so mechanical a theory.

As a result, the progressive movement got a major boost when Wilson was elected president in 1912. His administration immediately set out to make changes to the Constitution to allow government to expand its power and control. The adoption of the 16th Amendment allowed for a progressive income tax, which made it possible to redistribute income. Subsequently, the 17th Amendment cut state legislatures out of the law-making process by selecting senators on the basis of popular vote rather than as specified originally. This move allowed the federal government to pass laws that extort the states to comply with federal mandates, as state legislators no longer had a say. Finally, the passage of the Federal Reserve Act monopolized money and banking in the nation. All these were major tenets of socialism. Thus, the Wilson administration set government on a course of becoming a Leviathan.

There were, of course, other mutations that accelerated the growth of the administrative state. Franklin Roosevelt’s New Deal programs went a long way toward major expansions in government power and control. Coupled with various legislative acts that created new government departments and bureaus, government power and control has continued to escalate. So much so that the government now aims to tell citizens what kind of car they may drive, what kind of stove they may purchase, and even the amount of water that can be used when they flush their toilets. This is a far cry from the individual freedom recognized by the U.S. Constitution. Indeed, Leviathan is alive and well in America. Is it possible to restore a limited constitutional government? That is a the question for this age of growing political crises.

Paul A. Cleveland

Dr. Paul A. Cleveland is a professor of economics and finance at Birmingham-Southern College. He earned his Ph.D. in economics from Texas A&M University and began his career at SUNY-Geneseo in 1985. He is the author of two books: Understanding the Modern Culture Wars and Unmasking the Sacred Lies.