While many of us greatly value the United States Constitution, there are numerous critics of the Constitution including in the United States. In particular, the critics argue that other countries should not attempt to emulate the U.S. Constitution. Two features of the U.S. Constitution have been subject to scrutiny: its establishment of a federalist system and its use of a presidentialist executive.
Steve Calabresi has a new article out that ably defends the U.S. Constitution. Calabresi acknowledges the problems with federalist and presidentialist systems, but argues that the U.S. Constitution avoids these problems with distinctive features that have not been employed by other countries that have adopted these systems.
The burgeoning literature on the Obama administration, one of the most lawless in U.S. history, includes Michelle Malkin’s Culture of Corruption (2009), Tom Fitton’s The Corruption Chronicles (2012), Gene Healy’s False Idol (2012), John Fund and Hans von Spakovsky’s Obama’s Enforcer: Eric Holder’s Justice Department (2014), Andrew McCarthy’s Faithless Execution (2014), and the many legal critiques of Obamacare. None, however, focuses on the damage the 44th President has done to the U.S. Constitution like George Mason University law school professor David E. Bernstein’s excellent new book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.
Can the U.S. House of Representatives elect a non-member to the Speakership? Disgusted by the dysfunction in Congress, some are suggesting this is constitutionally possible. Connor Ewing, in this space yesterday, asserted the only thing standing in the way is “over two centuries of legislative practice to the contrary.” (Editor’s note: Ewing’s latest, written in reply to Schaub and National Review’s Matthew Franck, is here.)
Over at Balkinization, Sandy Levinson has a post noting that people in the U.S. are willing to speak openly about the defects of the UN Charter (that it gives Russia and other security council members a veto) whereas they are not willing to acknowledge defects in the Constitution. Instead, Sandy writes that they display a "ridiculous veneration . . . toward our own flawed Constitution." It is worth noting, however, one likely reason for this divergent response. In the U.S., the people generally support vigorously the Constitution. By contrast, the public does not have much support for the UN or the…
This will be my third and final post on Jason’s Brennan post entitled What Do Libertarians Think about the U.S. Constitution (based on his new book). In my previous post, I argued that Jason ignored the significant possibility that a stronger federal government would further liberty because it would promote both peace and competition between the states.
Here I want to discuss Shay’s Rebellion, which is often cited as a reason why a stronger federal government was needed. Jason describes the Rebellion as a “bizarre” and therefore weak basis for a stronger national government. Jason writes:
Shay’s Rebellion in 1786 prompted many leaders to replace the Articles of Confederation and to favor a stronger central government. Daniel Shay was an honored and decorated soldier during the American Revolutionary War. Like many revolutionary soldiers, Shay was never paid for his service. He returned from service with large farm debts—debts he could not pay because he was not paid for his military service. European creditors wanted payment in gold and silver, but these were in short supply. Shay and other badly treated veterans worried their property would be confiscated and they would be placed in debtors’ prisons. They petitioned the Massachusetts government to fix the problem. Boston ignored their petitions. Finally, in desperation, Shay and other farmers rebelled. They formed a militia to prevent local courts from confiscating their property. Under the Articles of Confederation, it was difficult for the US central government to help Massachusetts crush the rebellion.
American public school history books tell the story of Shay’s Rebellion in order to show that the US Constitution was necessary. Some libertarians take an alternative reading: The government treated Shay and his fellow farmers in an extremely unjust way. If Shay’s Rebellion is supposed to justify the US Constitution, what is the justification, that the Constitution makes it easier for the government to oppress the poor? (emphasis added)
Two points here. First, Shay’s Rebellion is used as a case of where civil insurrection might have triumphed and displaced the elected government. While libertarians might sympathize with the farmers, many insurrections are based on less sympathetic causes. Allowing such insurrections – or permitting weak governments that cannot put them down – is not a good way of promoting liberty. As Hamilton wrote in Federalist No. 9 justifying the new Constitution as a means of promoting stability in government:
Over at the Bleeding Heart Libertarian Blog, Jason Brennan has a post on “What Libertarians Think about the U.S. Constitution” based on his new book Libertarianism: What Everyone Needs to Know. Of course, Jason does not speak for all libertarians on this issue, and certainly not for this moderate libertarian. I plan a couple of posts on Jason’s argument.
I should begin by pointing out that Jason’s criticisms of written constitutions and the U.S. Constitution bring to mind one problem that I have with less moderate libertarians. They often disparage the good that can be achieved in favor of the ideal that cannot. Written constitutions, including the U.S. Constitution, have been in the main an important force for liberty, even though they have not been perfect. Failing to recognize that undervalues what can be secured in the real world and what has been responsible for our liberty. This turn of thinking brings to mind the abolitionists’s zealous criticism of Abraham Lincoln for not being radical enough.
That said, I agree with some of what Jason says. Here let me consider a couple of Jason’s points. First, he argues that while the U.S. Constitution establishes a constitutional democracy, the constitution part is more important than the democracy part. For a libertarian, there are certain things that even a majority should not be allowed to do. Well, I certainly agree with that latter claim. Majority rule has it virtues and vices, and an ideal constitution would limit majority rule to its proper limited sphere.