The Constitution Failed

Constitution_of_the_United_States,_page_1If you’re still wondering if the US Constitution of 1787 failed to protect liberty, then just look around you. That scrap of parchment is an obvious failure. The US government is the hugest government in the world and meddles in the lives of its citizens (and people worldwide) in every way imaginable. The government accepts no limits on its power whatsoever. The president rules by decree.

This isn’t done under some new constitution. This is all done under the 1787 one. Lots of liberty activists argue that the Supreme Court is just reading the document incorrectly, but one simply cannot deny that virtually everyone in government, as well as most of the general population, is perfectly fine with most of what government does today, and thinks it’s constitutional. If one can plausibly claim that the constitution authorizes most of what the US government does today, then the document’s language is obviously feeble, ineffective, and useless for the purposes of preserving liberty.

Even among those “constitutionalist” types, many of whom are militarists, you’ll find plenty of support for unconstitutional measures such as a standing army, drug prohibition, and other government programs beloved by conservatives, but which are obviously not authorized by the enumerated powers of the constitution.

Rothbard had this figured out a long time ago:

From any libertarian, or even conservative, point of view, it has failed and failed abysmally; for let us never forget that every one of the despotic incursions on man’s rights in this century, before, during and after the New Deal, have received the official stamp of Constitutional blessing.

At a recent meeting of Students for Liberty, John Stossel spoke to some students of Rothbard:

Kelly Kidwell, a sophomore from Tulane University, said, “Regardless of what its intent was, we still have the (big) government that we have now — so the Constitution has either provided for that government, or failed to prevent it.”

Stossel went on:

That’s an argument that libertarian economist Murray Rothbard used to make. He took the pessimistic view that the Constitution’s “limited government” was an experiment that had already failed, since 200 years later, government was barely limited at all. He concluded that libertarians should be not just constitutionalists, but anarchists — get rid of government completely.

That idea sounds extreme to me, and to some libertarians at the conference — not to mention the few pro-big-government speakers, like movie director Oliver Stone. But I’m happy that students ask those sorts of questions rather than wondering which regulations to pass, what to tax and whom to censor for “insensitive” speech.

 UPDATE: A reader points out this statement from Lysander Spooner: 

But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.


  1. Those of you claiming that it wasn’t the constitution that failed but we the people have are missing the point. The system has to work for people as they are not some fantasy humanity that is activist, wise, & vigilant. The constitution created the wrong institutional structure. The anti-federalists warned of the dangers. Here is a sample of what Patrick Henry thought of the document:

    “There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances?”

    “…this Constitution can counteract and suspend any of our laws that contravene its oppressive operation; for they have the power of direct taxation, which suspends our bill of rights; and it is expressly provided that they can make all laws necessary for carrying their powers into execution; and it is declared paramount to the laws and constitutions of the states.”

    “It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world…blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.”

    The above is from Henry’s speech before the Virginia Ratifying Convention. The title of the speech is “Shall Liberty or Empire Be Sought?” I highly recommend reading all of it, it’s well worth it:

  2. It has not “failed” any more than any tool may fail if it is not applied, or applied incorrectly. One of the many failings is in not maintaining proper distinction in the attempt of the “check and balance” design. The profound shortcomings in terms of justice under aspired values created no small part of the difficulty as well. Dishonorable persons doing their work and remaining in positions of power- it is as old as the ages. The model is not, in the whole, a poor one- but it has been so over-taken by so many variables I fear it may not be tenable as it is. We may indeed be looking toward some form of confederation again. I have been appreciative of the anarchist arguments- they tend to identify some “absolutes” for comparison- but I have never been convinced of the particulars, of which I have always found a paucity of practical thinking. When the stuff hits the fan- if it does indeed do so- I would prefer to allow some mutually respected boundary to remain between your camps and myself and kindred country. This does not mean complete rebuff- I will allow that we should always encourage creative thinking. Perhaps we should consult some persons who have not so filled their heads with so much, as I admit I have not been able to avoid.

  3. The written Constitution as created has not, Not, repeat NOT – failed.

    “We The People” ARE supposed to be the Constitution and the government. And WE have failed.

    The political “government” …
    consisting of politicians IS a ‘necessary evil – like fire.’
    Kept small, it can warm, cook food, boil water etc.. But out of control, it will burn down the forest
    and destroy everything and everyone.
    The politicians have just forgotten- or never believed- that THEY ARE SERVANTS OF THE PEOPLE
    and PROTECTORS OF the Constitution. (and by the way, SWEAR on it, THEN proceed to twist or
    ignore it at every opportunity.) It is THEY that have NOT been kept in CONTROL.
    They have not been put back in their place….And that is the PEOPLES fault- the people have FAILED.

    The PEOPLE…
    (a.k.a. the ignorant public) have NOT been properly taught what the Constitution (and the B.O.R.) ACTUALLY says. HOW in the world can they ever defend it?
    They know many things are not right in their lives, that they are being robbed, lied to, enslaved,
    persecuted unjustly- etc. etc.. But feel helpless, hopeless, and unable to change anything.

    And sadly, history has repeatedly shown- world wide, that the PEOPLE will eventually awaken,
    become disgusted and fed-up, and will foment insurrection, revolt,
    ….and drag the “leaders” out of their high places, and dispose of them.

    By the way, I am a Libertarian Constitutional Minarchist- NOT a total Anarchist.
    Anarchy DOES NOT WORK in any society – ever. Search History.
    Even if total anarchy could happen , the USA would be easily invaded and taken over by other countries that still have a government and strong military.

    Stand up America.

  4. The US constitution was intended for a moral people…

    “But should the people of America once become capable of that deep simulation towards one another, and towards foreign nations, which assumes the language of justice and moderation while it is practicing iniquity and extravagance, and displays in the most captivating manner the charming pictures of candor, frankness, and sincerity, while it is rioting in rapine and insolence, this country will be the most miserable habitation in the world; because we have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

    John Adams
    11 October 1798
    A Letter to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts
    The Works of John Adams, Second President of the United States …, Volume 9
    By John Adams, Charles Francis Adams

    • A moral people do not institutionalize aggression. Slavery (3/5ths clause), intellectual monopoly privilege (patent office), taxation (directly apportioned and tariffs), an oligarchy to rule over others (3 branches of government with the “authority” to rule over everyone else), the willingness to use violence against competition (aka “insurrection” when referring to would-be-competitors within a unilaterally declared geographical region, “invasion” when referring to would-be-competitors outside that fiat jurisdiction). One has to invent a new, and useless definition of “moral” to imagine the Constitution fits the description.

  5. I hear you. So what?

    If the Constitution is a failure then no system of laws, a government will work.

    If no government will work then Mises is wrong when he talks of the need for government in HUMAN ACTION.

    If no government will work then what does? Anarcho-capitalism is a fantasy, there has never been such a human condition. We are well aware of the world without government as the marauding mobs took what they wanted and those that formed the strongest mob ruled.

    The truth is that free markets cannot exist without government, and government destroys itself without free markets.

    It is not the constitution that has failed but mankind. If we want a world of freedom we must change the hearts of men.

    • @Dick

      Utter nonsense.

      “If the Constitution is a failure then no system of laws, a government will work.”

      Though I agree that no state (what you’re really referring to as ‘a government’) will work, it does not follow that since the Constitution failed, that means all governments will fail. Your conclusion is right, but your logic is fallacious.

      Mises was wrong. It happens. His dismissal of anarchy is completely unsubstantiated and quite an odd aberration of reason in his otherwise brilliant work. Some have argued that he was lazily associating “anarchism” exclusively with anarcho-socialism (since that’s all he had been exposed to), which is indeed a faulty theory and thus worthy of dismissal. But as his student Rothbard showed, the idea that the state is necessary for markets is not only unsubstantiated, but flat out wrong.

      Why is Anarcho-Capitalism a fantasy? Because you say so? Actually, it is the idea that monopolizing any service will result in a better result for the consumer that is the fantasy. Monopolizing government (i.e., a state) is not some magic exception. Monopolies (which can only be created through force) remove the incentives of competition which cause quality to rise and prices to fall. This is basic economics and history shows this consistently. Where this is competition, products get better and cheaper. Where is monopoly, the opposite is true. The state takes more and more money and the “services” it provides become less and less worthwhile (and violations of the “customer” increase). Just think for a second: if the US government was a company you didn’t have to hire; based on its track record, would you hire it/continue to pay it? The answer for almost anyone who’s not completely brainwashed is an obvious no. The fact that there are more private security guards that Law Enforcement Officers is evidence of this. When people really want their property/persons REALLY protected, they know not to rely on the state and thus double-pay (since they cannot cancel their taxes) in order to obtain services that are provided through the market. Are we to believe that without a state, these private security forces would turn on their customers and rape and pillage? Great fun, but what happens tomorrow? How do you get new customers without building a reputation for honesty? States don’t have to worry about getting/keeping customers, they just imprison you if you disagree and kill you if you resist.

      “The truth is that free markets cannot exist without government”

      This is an unsubstantiated claim and is the opposite of truth. Where there is a state, there are no truly free markets since the state already monopolizes at least some services, which causes distortions in the market. Of course, even the hallowed original Constitution distorted more than just the standard “governance market” (security, arbitration) by establishing/protecting, to name a few, IP (huge distortion), a postal service, “regulated commerce”, the monetary system, and oh yeah…that “minor” distortion of the labor market called slavery. As the US state has grown, almost every market has been distorted as a result and is not truly free.

      “It is not the constitution that has failed but mankind.”

      This is also nonsense. If you build a bridge based on engineering diagrams that are mathematically flawed, it’s not “failure of mankind” when the bridge collapses but the failure of SOME men who made a faulty plan. Likewise, when you have a logically flawed concept like statism, the result of failure to attain the professed goals is to be expected (but that’s assuming the benevolent goals professed; if you consider the state as a plan to expropriate wealth and rule over others all while having them thank you for it, or at least resign themselves to ‘this is the only thing that’s possible; Hobbes has scared me so badly I wet the bed thinking about the absence of someone ruling over me’, it’s a stunning success). There is nothing inherent to mankind that makes freedom require an incoherent idea (e.g., give people the power to steal, kidnap, and kill us to protect us from people who could steal, kidnap, and kill us). Incoherent ideas are the fault of the individuals who think them, not the fault of “mankind”.

      • “if you consider the state as a plan to expropriate wealth and rule over others all while having them thank you for it… it’s a stunning success”


        I am always puzzled by people who think/feel/believe that the State is a failure or bad at what it does.

        I am puzzled even more by people who think they can change it’s nature.

    • Absolutely, Dick.
      The Constitution didn’t fail anyone any more or less than any other icon or iconic agreement. We fail each other, all there is too it. Rise to the occasion or go with the flow of sepsis.

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