That truth should be silent I had almost
Antony and Cleopatra, Act 1, Scene 2
December 17, 2002
By RONALD N. NEFF
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Libertarians who write or argue at all about gun regulation or the drug war understand as well as anyone can that neither regulation can work. They may present arguments based on natural rights or on the U.S. Constitution, but sooner or later, at some point in the argument, they will also explain why neither form of regulation can have the desired effect of protecting the public from criminals.
It is ironic, then, that so many of these critics are constitutionalists, that is, advocates of a certain form of government.
These advocates recognize that the state has been the premier enemy of liberty throughout history. Even so, believing that its absence would be worse than its existence, they have set themselves to trying to work out how a government can be designed that will somehow not be an enemy of liberty, or at least be an attenuated one. They call this chimera a "limited government."
It is to be limited both in the nature of its powers and in the exercise of them. Not only will certain actions be forbidden to it, but even those functions assigned to it are to be exercised only within certain limits or by following certain procedures. To transgress those limits at least to transgress them quite a lot is to forfeit legitimacy and ultimately to open itself to the dreadful prospect of revolution or civil war. That is the theory, anyway. In fact, even though the government that daily oppresses Americans has transgressed the limits imposed on it to so great an extent that the Framers of the Constitution could scarcely recognize the government they created, there is hardly to be found anywhere a constitutionalist who advocates revolution. Instead, constitutionalists toy around the edges and write essays concluding with such ominous warnings as, "If this proposal should become law, our government will have passed over from ..." or "will have lost all claim to ..." and so on. Forty years ago, constitutionalists called this government a fascism or a socialism, and today they still defend it when it goes to war and say it is the freest country in the world. As though it had somehow gotten freer in the interim.
So it's pretty clear that a constitution is not quite the guarantee it was promised to be or hoped to be. Naturally, one can count on constitutionalists to reply that the present tyranny is the outgrowth of contradictions or ambiguities in the current constitution, and that they would be sure to write a much better one.
What they do not seem to notice is how much like the gun-regulation lobby they sound: this packet of laws has not worked, so let us pass others. Or how much they sound like the drug-regulation lobby: give us yet other powers and we will put an end to this trade in narcotics.
What they do not seem to notice is that they are advocating a kind of law-control. Their constitution is to function as a superlaw that will keep lawmakers from "importing" certain kinds of laws, just as new gun regulations will keep criminals from "importing" certain weapons and drug regulations will keep dealers from "importing" certain pharmaceuticals.
A constitution says in effect, "You may not pass certain kinds of laws." And yet those laws are passed. And libertarians who understand that criminals will get guns despite existing regulations are nevertheless confident that they can devise laws that politicians cannot get around. They will write new laws intended to obstruct the circumvention. And when politicians find ways around those laws, libertarian constitutionalists will clamor for yet others to be written.
They forget that laws even the superlaws of a constitution are not broken by the law-abiding. They restrain only the law-abiding. But it was usurpers who were supposed to be restrained, and they are not daunted by the law. Free-market advocates of the limited government understand this principle when it is applied to trade restrictions, or to regulations on guns and "controlled substances." What they do not see is that the provisions of a constitution make certain kinds of laws a sort of "controlled substance." And when there is a profit to be made from thwarting those provisions, we can be sure to see them thwarted.
But a government, it may be replied, is only as good as the men who are in it. Of course if men become scornful of liberty or the law they will violate them, and gradually tyranny will be the consequence. We never said that a constitution would work automatically. It is necessary to elect or appoint only such men whose love of liberty and reverence for liberty and for the law has been tested and found robust.
It would be easy to meet this counterargument with a loud guffaw, but I think it merits a subtler reply. To be sure, men who love liberty and who have reverence for the law would be less likely to violate the provisions of the constitution. That is another way of saying that lovers of liberty will abide by its provisions. But is that a sufficient guard for our liberties? Wasn't the point of the constitution to protect our liberties from transgressors, from would-be tyrants? Can we really depend on the goodwill of politicians in legal and political matters (to say nothing of diplomatic matters) to revere what the government was designed to safeguard our natural rights?
I am reminded of a passage from Adam Smith, often quoted by champions of the free market even by constitutionalists but usually in other contexts, to wit:
It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages. Nobody but a beggar chooses to depend chiefly upon the benevolence of his fellow-citizens.
The tribunes of the people, defenders of liberty, are expected to think of their interests as lying with the cause of liberty. Constitutionalists expect them not to misperceive their own interests and expect them not to heed the call of their own (misperceived) interests. But now it appears that the constitutionalist expects both love of liberty and inerrancy on the part of those elected to official positions in addition to their other qualities.
There is no mechanism built in to the superlaw such that by following their own interests politicians will be led, as it were by an invisible hand, to be true to the demands of liberty. Whatever incentives to usurpation exist in them will not be countermanded.
The simple fact is that law-control will be as dismal a
failure indeed, has already been as dismal a
failure as gun-control or drug-control. For the
same reasons, and pretty much in the same
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