Law and the Constitution

David Boaz: Law is a crucial topic for a free society. It’s a crucial topic for any society. It’s hard to imagine a society that doesn’t have law. But defining exactly what law is seems complicated to me. First problem is people tend to think law is a set of commands. The government tells you these things. The Congress passes laws and tell you what to do. I think the proper understanding is that law is not a set of commands. Law is rules that allow us to go about our business. Don’t hit other people. Don’t take their stuff. Keep your promises. Those are the fundamental rules of law. And we couldn’t live in a civilized society if we didn’t do that.

Law originally, at least in our world, evolved spontaneously. It was not originally a product of parliament. It was a product of long, long ago in prehistory, people had a problem. My tree fell on your property. Who’s responsible for that? And people had to figure out a way to decide, and they started by going to a neighbor and saying, “Okay, my tree fell on his property. What should we do about that?” And some of these neighbors came to be viewed as particularly wise. They knew what the precedents were, what had been decided in other cases. And they got called on a lot, and they came to be known as judges. And the judges typically relied on precedent. The last time a tree fell on somebody’s yard, this was the rule we followed. So we should follow that again, and we’ll all know what the rule is.

And that’s how law was originally built up. In England and America, we call it the common law, the law that was built up from the people, and not the law passed by parliament or a Supreme Court or anything – rules that allow us to go about our business. And in general, common law may not be a perfectly libertarian document or a doctrine. But if you think about it, if you look at the common law, you see that it is based on individual choices, individual responsibility, property rights, and making the rules that we need to live together with others. If we were Robinson Crusoe on a desert island, we wouldn’t need any law. We only need it because there are other people around.

The fundamental law in the United States, of course, is the constitution. And as you can see, this little booklet is the constitution and the Declaration of Independence. So the fundamental law is pretty short. It’s not 80,000 pages a year like the Federal Register. There are 2000 pages in a federal budget bill. 2000 pages is about what? 100 times as long as the constitution of the United States. The constitution was created in order to create a government and in order to limit the government. And the purpose of it was to recognize that you have to have some government. And, of course, there are libertarians who say you don’t need any government, but I think even they mean that you don’t need a coercive State. They don’t think you don’t need law and governance and rules. They just don’t think they have to come from a coercive state.

The founders thought you needed a government, and you also needed for the government not to oppress the people, and that was the challenge that they tried to address in the constitution, by creating a government, by giving it some powers, by enumerating the specific powers. They delegated to the government powers. They enumerated the powers, mostly in article 1, section 8. And by doing so, they limited the power. So the constitution creates a government of delegated, enumerated, and thus limited powers. They divided powers. They gave the president some powers, the Congress some powers, the Supreme Court some powers. They also divided power between the states and the federal government. In all those ways, as Bernard Bailyn wrote about the English ideas that were implemented in America, they were afraid of what power could do to freedom and civilization, and they wanted to limit it.

Is the constitution a libertarian document? Well, a lot of libertarians think the Articles of Confederation would’ve been a little more libertarian, and we can all think of ways that the constitution might be a little bit better. I’m sort of inclined toward whoever it was who said, “The constitution of the United States is not a perfect document, but it’s better than what we’ve got now.” The idea being, of course, that we don’t really live under the constitution. We live under a whole lot of constitutional law made by the Supreme Court that has allowed the government to assume a great deal of power that isn’t actually authorized in here. However, despite that, we still halfway live under the constitution, and it does limit the powers of government, and therefore does protect a great deal of freedom in the United States, and that’s a good thing.

Over the years, courts have interpreted the constitution in a lot of ways that I think undermine basic rights. It has allowed a military draft, for instance. You would think that violates the 13th Amendment, prohibition on involuntary servitude. But court has not seen it that way. The court allowed the incarceration of Japanese Americans during World War II. The idea that that is there as a court precedent is still kind of scary. You could round up people on the basis of their national origin if you think that that might be for the good of society. It has failed to enforce enumerated powers. There is no power granted in the constitution for the federal government to run a mandatory national retirement system. No power granted to the federal government to oversee healthcare or education or lots of other things. So it has failed to enforce the limits on the federal government. It has failed to properly enforce the limits on the president’s power to make war, to issue regulations, to suspend regulations and laws. That failure has to be laid also at the door of Congress. Congress could stop the president from making war without congressional authorization. But too often these days, Congress is cowardly, supine, does not step up and insist that if you’re going to war, you have to ask for authorization from the people’s body, the Congress. Failed sometimes to enforce un-​enumerated rights. Obviously, conscription is an example of that.

The drug law is one example. Back in the first part of the 20^th century, some people wanted to ban alcohol across the entire country. As bad an idea as that was, you have to give its advocates credit for understanding that the constitution wouldn’t allow such a ban. So they campaigned for a constitutional amendment, and they got one, a constitutional amendment to limit freedom, which is an unfortunate kind of amendment to a largely libertarian constitution. But the federal drug war has no constitutional authorization. The authorization was for banning alcohol, not for banning other substances. At least the prohibitionists understood they need that. The drug warriors have never done that.

Another thing that Congress has done is allow general warrant. In your history books, those were called writs of assistance. Remember from the Colonial era, the Crown would issue writs of assistance which essentially allowed the British military to go into every house in Boston looking for dissident literature or dissident activists or whatever. Today the NSA has been engaging essentially in writs of assistance, general warrants. Normally, if you think somebody might be guilty of a crime, you go to a judge and you get a search warrant. That authorizes you to search that person’s house for specific kinds of contraband or evidence. A general warrant means you get to go search everybody’s house, and that is essentially what the NSA has operated under, and the Supreme Court has not stopped it.

In many examples of the Supreme Court eroding the sanctity of contracts, the gold clause contracts was a big case back in the 1930s. Contracts used to be written in terms of gold. In return for this, I will pay you 100 ounces of gold. And the Supreme Court agreed it was okay to void that provision and just let you pay back in dollars. That’s an erosion of the terms of the contract. These days, all sorts of contracts in business are either found to be unduly unbalanced. People should not have to abide by them because there was a symmetry in bargaining power, that sort of thing. Eroding contracts is a serious problem that the Supreme Court has engaged in.

Now we might ask, “Well, does that mean we should throw out the constitution?” I wouldn’t say so. I would say we out to try to make the government live under the constitution. Are there ways that we might improve the constitution? It might be good if the constitution guaranteed the president the right of a line-​item veto, i.e. Congress passes an appropriations bill, and the president can sign it, but he can say, “I’m not authorizing this part and this part. I’m vetoing these 2 lines, these 10 lines, whatever.” Now there’s an argument that that gives too much power to the president, and the president would use that power to say, “If you don’t vote for my war in Iraq, I’m going to take out your dam from the appropriations bill.” Still, I think probably a good idea if the president could line out wasteful spending.

Term limits might be a good idea. Do we need members of Congress staying in for 30 or 40 years? Senator Barbara Mikulski is about to turn 80, and she’s been in Congress for, I think, 42 years. And she recently announced that she was going to retire. And reporters called this a stunning, shocking decision. She’s been in Congress 42 years. Is there no one else from the State of Maryland qualified to serve in Congress? That just shows you this permanent ruling class that we have in Washington. So term limits might be a good idea to have in the constitution.

It would be nice if we could enforce enumerated powers, but the enumerated powers are already in the document. So how you write a constitutional amendment that says… And we really mean it. I’m not sure. We could write an amendment that says, “The enumeration of certain rights in this constitution shall not be construed to deny or disparage others retained by the people.” Just because we didn’t write it down doesn’t mean we don’t have that right. But that’s already in there. It’s the 9^th Amendment. And you could write an amendment that says, “The powers not granted to the federal government in this constitution are reserved to the states or the people.” But that’s already in there too. That’s the 10^th Amendment. So I’m not sure exactly how you change it. So what that seems to leave us with is we try to educate law students and judges. And we’ve done that to some extent. There had been judges who have actually found recently that there are limits on the power of Congress. They’ve found that the 2^nd Amendment means what it says. They have found that things like gun-​free school zones laws simply are not authorized in the constitution, but not nearly enough. And so an educational process of talking to people, to law students, to law professors, to judges, about the meaning of the constitution seems the best way to do it.

We all want to live in a law-​governed society. The worst places in the world are those that are not governed by law. They may be governed by the edict of one man, like North Korea, but that’s not law. Sometimes we see a government doing something, particularly in another country. And we say that seems like an unwise decision. But if we remember that it’s because they’re following the law, even though the law may be bad, it’s a sign that you live in a lawful society, and that’s better than living in a society without law. Law is essential to civilization. What we want is law that reflects a constitutional commitment to the protection of freedom, the protection of life, liberty, and property.

Question: Ours is a legal order built upon the English common law. Historically, English common law juries were permitted to judge not just the guilt of the defendant but the justice of the law being applied by the prosecutor. Should modern American juries have that similar power?

David Boaz: Well, I’m no expert on that, but my understanding is that is part of their powers. Cato published a book on jury nullification. The people I’ve talked to generally believe that yes, that is a power of the jury. Judges don’t like it. If you go into a jury saying you’re a jury nullifier, they’re going to throw you off. However, there clearly are cases, not all the time, but continuing, where juries must have been practicing jury nullification because it’s pretty clear the evidence showed the person did it and the jury didn’t convict. And that suggests either that they think the law itself is unjust or the law applied in this case was unjust, and so they have substituted a notion of justice for the letter of the law. So I think that is a power of the jury, and yes, I think it is one of the protections in a free society. It’s one thing to be able to elect the people who will govern us, but there are many problems with democracy and the electoral process. One of the protections we have is the jury box. It was a candidate for Congress many years ago who said something like, “Three of the great protections for freedom in America are the ballot box, the jury box, and when those fail, cartridge box.” East Coast intellectuals did not appreciate this line of argument. It turned out that rocky mountain individualists thought it was a fine argument in that a guy got elected. But the jury box is part of that. And being able to hold the government to account, even for wrongful prosecutions, is part of the process of the jury.

Question: You suggested that adding a balanced-​budget amendment to the constitution will be a good idea. I was just curious why the framers of the constitution did not originally add that into the constitution. Was there a specific reason? Or did they just think it would be common sense to balance the budget every year?

David Boaz: I don’t know. I think Jefferson was in favor of it, but Jefferson lived 50 years or about 40 years after the constitution. So it’s possible that he only came to that understanding later. I don’t remember. I would guess that before modern accounting, it would have been very difficult to run long-​term deficits. And who was going to lend a lot of money to the fledgling United States government? So it may just not have been perceived as a problem. If you look at the bill of rights, you can see that a lot of the things that are in there are very specifically generated by things they knew had happened. And it may be that they had not thought about the problem of running long-​term deficits. And indeed, 190 years later in 1980, we had a trillion-​dollar national debt. Now conservatives and libertarians tended to think that was outrageous, and they railed against it. And they called Jimmy Carter a spendthrift for having a $60 billion federal deficit. But in something more than 30 years since 1980, we have run up another $17 trillion in debt. So 190 years, $1 trillion, 35 years, another $17 trillion. And one of the points that I’ve heard people make about that is in those 35 years, we did not have a major war or a major depression. We had a great recession. But it’s one thing if you have a major war. If you’re fighting for your society’s survival, makes sense to go into debt. And a depression might drive you into that circumstance too. But to do it in a generally prosperous time, much of which is known as the long boom, that’s just insane fiscal management that I imagine the founders could not imagine.