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US Constitution

6 min read

Part of The Constitution and the courts.

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Every episode (2)

Who argued it

Alex Nowrasteh · Thomas Fleming

Background: United States Constitution

Text as a limit on foreign policy

Gary Johnson invoked the Constitution as a constraint on military action abroad. He said there is nothing in the United States Constitution that says that because we do not like a foreign leader, we should go in and topple that foreign leader, and he applied that to Libya, arguing there was never a military threat from Libya. He also described Iran as an unintended consequence of Iraq, and said that while he did not think there was a military threat from Iran, Israel would act if Iran developed a nuclear warhead and the delivery to do that, acting in concert with the United States. Johnson proposed reducing military spending by 43%, which he said would only return spending to its 2003 level, and questioned the need for 2,300 nuclear warheads and 100,000 troops on the ground in Europe. Bob Zadek agreed, saying there is a disconnect between the wars and battles being prepared for and the real threats, and called it a profound waste of money. The Triumph of Principle Over Politics (2012)

Borrowing and rejecting the American model

Vít Jedlička, founding Liberland, said he had picked selectively from the United States Constitution and rejected parts of the American system. He rejected the presidency: Liberland would have no president, only a head of an assembly body of 20 people with no extra privilege like the presidents do, because he did not think a presidential republic proved to be right when you take a look at what the administration in US is doing nowadays. He pointed to war powers as an example, saying there is a clause requiring the president to ask within 60 days or 55 days whether a war is correct, that this used to be a power of Congress, and that United States constitutional lawyers are not too bothered about the fact that there is a war in Libya and nobody declared it and Congress did not approve it. From Switzerland he took a citizen veto on new legislation, a requirement of a national referendum or veto on any tax rise, and a ban on budget deficits; he said the Patriot Act and the new healthcare bills would be easily rejected under such a veto. From Estonia he took electronic voting. His parliament would require two-thirds of the votes to pass any bill and a unanimous decision to change the constitution. vít_jedlička_on_founding_liberland

Not self-enforcing

Fergus Hodgson called the United States Constitution not a self-enforcing document, in the course of explaining why Venezuelan democracy slipped away. He said democracy is a fragile approach to governance, vulnerable, and that people can game the system and convert it to a dictatorship, which happened in Venezuela by controlling the courts, the media and the voting system until there were no competitors. He cited a mentor’s article titled “Wiki-Constitutionalism,” on the tendency among Latin American nations to adjust or reform or write new constitutions seemingly every other year, and said one country had had something like 70 different versions of a constitution. In Venezuela, he said, there are over 140 political prisoners, and prominent competitors were barred from running or imprisoned, as in the case of Leopoldo López. Venezuela on the Brink with Fergus Hodgson (2017)

Enumerated powers, cooperative federalism, and unenumerated rights

Ted Hadzi-Antich said the United States Constitution enumerates the very limited powers of the federal government and, under the reserve clause, reserves to the states all other powers not specifically enumerated for the federal government; he said the Clean Air Act coined the phrase cooperative federalism in 1967. How the EPA Violated the Clean Air Act (2017)

Clint Bolick argued that economic rights — the right to free labor, meaning the right to contract with another person to perform work at an agreed-upon salary without government intruding, and freedom of enterprise, the right to establish a non-harmful business without extensive government interference — are bedrock American rights that do not explicitly appear in the United States Constitution, because they were so widely accepted that no one thought it necessary to explicitly enumerate them. He said southern states enacted Black Codes after the Civil War to suppress black labor by suppressing freedom of contract, imposing occupational licensing laws and restricting private property rights; these were outlawed by the Civil Rights Act of 1866 and incorporated into the 14th Amendment through the Privileges or Immunities Clause, which he said was erased from the Constitution within a very short time in the Slaughter-House Cases in Louisiana. Since then, he said, courts have given virtually no protection to freedom of enterprise and economic liberty. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)

Bolick also discussed the Tenth Amendment’s closing phrase “or to the people,” which Bob Zadek said should be recited every morning as a reminder that government has not got the power to do this. Bolick said there are powers no government rightfully possesses, and gave the example that under common law the government has no power to create monopolies — a right not mentioned anywhere in the United States Constitution, but one he argued does not exist because the power was never delegated to any government. He tied this to the Ninth and Tenth Amendments, saying certain rights were so obvious they did not need to be listed and certain powers equally obviously were not delegated to the government. Local Leviathan: Clint Bolick on Grassroots Tyranny (2018)

Across episodes

The episodes show no development across episodes: Johnson treats the Constitution as a limit on foreign policy, Jedlička as a menu of design choices, Hodgson as a non-self-enforcing document, Hadzi-Antich as an enumeration of limited federal powers, and Bolick as the source of unenumerated economic rights that courts abandoned.

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