Saturday, June 07, 2008

A "Living Constitution" Is Dead Constitution

Following is a review of Ron Paul's book, The Revolution: A Manifesto, by David Gordon, senior fellow of the Ludwig von Mises Institute and editor of The Mises Review. It's kind of strange to suggest that the establishment in 2008 of constitutional government in these United States would be "revolutionary." If Dr. Paul's book is half as eloquent as this review, I agree: it is a must read.

The review is found in the Summer 2008 issue of
The Mises Review.

In his historic campaign for president, Ron Paul again and again held up the Constitution as a benchmark to judge the policies of the American government. For this, some libertarians criticized him. Was Paul not guilty of "constitution worship"? What has a document that began as an effort to replace the Articles of Confederation with a more effective and powerful central government to do with libertarianism? Indeed, some of his most severe critics claimed, Ron Paul did not qualify as a libertarian at all.

In The Revolution: A Manifesto, Ron Paul responds magnificently to this false and irresponsible charge. He is well aware of the limited value of the Constitution: it is a far from ideal arrangement. Nevertheless, it remains the fundamental law of the United States and, if interpreted correctly, provides an excellent means to check the depredations of a government that violates its provisions.
To be sure, the U.S. Constitution is not perfect. Few human contrivances are. But it is a pretty good one, I think, and it defines and limits the scope of government. When we get into the habit of disregarding it, ... we do so at our peril. (p. 67)
To say this at once raises a new question: how is the Constitution to be interpreted? Paul answers that it must be read in a way consistent with the underlying principle of the document, the promotion of freedom. In this connection, he cites effectively a speech by Daniel Webster that condemned conscription as unconstitutional. The Constitution does not mention the subject at all: how then could he be so sure that the government lacked this power? Webster said that since the Constitution aims to promote freedom, no infringement of freedom could possibly be constitutional unless the document explicitly mandated it.
A free government with arbitrary means to administer it is a contradiction; a free government without adequate provisions for personal security is an absurdity; a free government, with an uncontrolled power of military conscription, is a solecism, at once the most ridiculous and abominable that ever entered into the head of man. (p. 56, quoting Webster)
Webster's view, here adopted by Paul, closely resembles Lysander Spooner's method of constitutional analysis, by which he controversially attempted to show the unconstitutionality of slavery, long before the adoption of the Thirteenth Amendment.

Of course the most well known of Ron Paul's recent attempts to use the Constitution to check federal power involves the Iraq war. The Constitution vests in Congress, not the President, to right to declare war. The Iraq war is then illegal, since Congress has not issued such a declaration. Supporters of the war cannot appeal to "authorization of force" resolutions. Congress cannot constitutionally delegate its power to declare war to the president, leaving it for him to decide when force is to be used appropriately.[1]

Paul makes his criticism even stronger by connecting it to the just-war tradition. It is an uncontroversial part of that tradition that a war cannot be just unless it is initiated by one holding authority to do so. In our system of government, it is Congress that possesses this power. Absent a Congressional declaration of war, then, the Iraq war is unjust. (The point must not be misunderstood. It is not a requirement for any just war that it be authorized by legislative resolution: it is only that if a legal system vests the power to declare war in this way, it cannot be justly exercised otherwise. In the American system, war without a Congressional declaration is unjust as well as illegal.)

Ron Paul also uses the Constitution as an instrument for sound monetary policy. As everyone knows, he is an able and effective advocate of Austrian economics. "I myself identify with a school of economic thought known as the Austrian School of economics, whose key twentieth-century figures included Ludwig von Mises, F.A. Hayek, Murray Rothbard, and Hans Sennholz" (p. 102). This careful student of Murray Rothbard realizes, much better than any other member of Congress, that sound finance demands the abolition of the Federal Reserve System and the restoration of the gold standard. He shows that the Constitution can be read in a way that promotes these goals. The government is granted the power to coin money, but in Paul's construal, this authorizes only gold or other metals as money. Fiat money is, he holds, specifically forbidden by the prohibition on emitting bills of credit.
The power to regulate the value of money does not mean the federal government can debase the currency; the Framers would never have given the federal government such a power. It is nothing more than a power to codify an already existing definition of the dollar ... in terms of gold; it also refers to the government's power to declare the ratio between gold and silver, or gold and any other metal, based on the market value of those metals. (pp. 138-39)
Against the line of analysis that Paul has followed, some might object that the Constitution must be read as a "living" document. Why should we care today what the Framers of the Constitution intended? Paul responds that the "living constitution" eliminates any limits on the power of the government.
That's why on this issue I agree with historian Kevin Gutzman, who says that those who would give us a "living" Constitution are actually giving us a dead Constitution, since such a thing is completely unable to protect us against the encroachments of government power. (p. 49)
Just the point of resort to the Constitution in the first place was to resist government; we cannot then embrace a scheme of interpretation that prevents us from realizing this purpose.

The Revolution: A Manifesto is by no means confined to Constitutional issues. Owing to the central importance of resistance to the Bush administration's bellicose foreign policy, I propose to concentrate on Paul's treatment of this subject.

As mentioned before, Paul defends the traditional American foreign policy of nonintervention. In a recent book, Dangerous Nation (Knopf, 2006), Robert Kagan, whom I discuss elsewhere in this issue, has advanced a surprising claim. He denies that the interventionist policy he and his fellow neoconservatives favor breaks with tradition. Not at all, he says: America has from its inception wished to carry to others its form of government, based on free principles. America has always favored democratic revolutions abroad. The quest to bring democracy to Iraq is no aberration of Bush and his advisors, but solidly in the American tradition.

Paul does not refer to Kagan, but he offers sufficient material to refute this preposterous view. He quotes both John Quincy Adams and Henry Clay as rejecting intervention to help revolutions in foreign countries. Adams said of America,
She well knows that by once enlisting under other banners than our own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standards of freedom. (p. 13)
Clay likewise said, "By the policy to which we have adhered since the days of Washington ... we have done more for the cause of liberty than arms could effect" (p. 14). Kagan's thesis flies in the face of the history he pretends to interpret.[2]

Paul also shows effectively that Bush's foreign policy breaks with American conservatism. In his televised debates with McCain, Giuliani, and others, Paul attracted much attention by appealing to Taft Republicanism. He continues that theme in The Revolution: A Manifesto and also notes that Felix Morley, Richard Weaver, Russell Kirk, and Robert Nisbet — all eminent conservative intellectuals — condemned the rampant interventionism of post-Wilsonian foreign policy.
Nisbet reminded his audience that war was revolutionary, not conservative. He likewise warned that socialist proposals have often, under wartime conditions, become the law of the land. (p. 33)
Whatever the validity of nonintervention in the past, have not the terrorist attacks of 9/11 changed matters entirely? Now we must combat global jihad, which aims to bring down our way of life; and the old rules no longer apply.

Paul counters that the terrorist attacks have been a response to American intervention in the Middle East, not an amorphous assault against America as such. If we were to end our costly meddling in this region, there is every reason to expect that the terrorist danger would abate. In this connection, Paul quotes the renowned expert on al-Qaeda, Michael Scheuer:
About the only thing that can hold together the very loose coalition that Osama bin Laden has assembled is a common Muslim hatred for the impact of U.S. foreign policy... To the extent we change that policy in the interests of the United States, they become more and more focused on their local problems. (p. 18)
The Iraq war has not only caused death and destruction abroad. It has damaged our civil liberties at home. The "misnamed Patriot Act" (p. 114), as Paul aptly terms this nefarious piece of legislation, allows the administration to arrest and hold without trial anyone it wishes, not excepting American citizens. Were not such lettres de cachet a cause of the French Revolution? Even John Ashcroft, hardly a civil libertarian, had before his accession to the cabinet condemned measures like those he was later to enforce. "While a U.S. Senator during the Clinton years, Ashcroft warned about proposed invasions of privacy" (p. 117). Paul, not content with criticism, has proposed concrete legislation to end this outrage.

Ron Paul's outstanding book is must reading for everyone who values liberty.


[1] Some defenders of executive power claim that the president may initiate force that falls short of formal war. Louis Fisher, Presidential War Power (University Press of Kansas, 1995) and John Hart Ely, War and Responsibility (Princeton, 1995) have effectively refuted this position. See my reviews in, respectively, The Mises Review, Spring 1997 and Spring 1996.

[2] For further discussion, see my review of the book in The American Conservative, January 15, 2007.

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