Libertarianism: A Constitutional Principle?
By Ben Cole, Political Theory & Philosophy Staff Writer  

Today, laws against personal drug use, regulations on industry, and welfare programs that redistribute taxpayer money have all been initiated in the United States on a federal level. But are these programs consistent with the philosophies and goals that once led to the Founding Fathers to risk their lives in open revolt against the Crown? One school of thought, libertarianism, would say that the answer is obvious; that the goal of the Constitution was to protect individual liberty and that such laws are antithetical to this goal. They complain that the United States has evolved from a Constitutionally-limited, almost laissez-faire state to one that will regulate and limit all liberties that stand in the way of the greater public good. Ayn Rand – whose objectivist philosophy contributed immensely to the formation of libertarianism – expressed her Constitutional nostalgia in her 1964 work The Virtue of Selfishness:

"The government was set to protect man from criminals -- and the Constitution was written to protect man from the government. The Bill of Rights was not directed against private citizens, but against the government -- as an explicit declaration that individual rights supersede any public or social power." [1]

What Rand and her contemporaries fail to grasp is that the authors they revere for proclaiming the superiority of individual liberty and paving the way for modern-day libertarianism have simultaneously promoted governmental exercise of “public or social powers.” Despite revisionist claims, neither the Constitution itself nor the political theories that led to its conception expressed libertarian views rejecting the legislation of public health and welfare.

The Magna Carta
Perhaps the most second-most prominent contractual limitation of government power to the U.S. Constitution, the Magna Carta, signed by King John in 1215, maintained legal validity for “no more than three months.” [2] Yet, according to former Congressman Bob Barr:

“The notion of a "Great Charter," clearly establishing rights of individuals and limiting the power of the governing authority, remains a central underpinning of Western civilization.” [3]

While the now famous Chapter 29 prohibiting a free man’s depravation without “the lawful judgment of his equals” is an early version of the Due Process Clause of the Fifth Amendment, [4] it is otherwise impossible to construe the establishment of “rights of individuals” as a main point of the Charter. The very notion of liberty as an extensive right to dispense ones own person and property would not be mentioned for hundreds of years. As historian James Clark Holt wrote, “Individual freedom can be justified by many methods. There is no logical reasoning for including Magna Carta among them.” [5] Limited government authority is similarly unjustifiable by an accurate reading of a document that actually intended to reestablish feudalism hierarchies. Chapter One calls for the establishment of the Anglican church. Chapter Sixteen presupposes the legitimacy of slavery. Chapter Twenty Four forbids local representatives from having their pleas heard before the Crown. Rather than underpinning Western democracy, these provisions seem to undermine modern societal values.

John Locke
In addition to the Magna Carta, John Locke’s The Second Treatise of Government is considered a milestone in libertarian thought. David Boaz of the Cato Institute writes in Libertarianism: A Primer, that “John Locke is rightly seen as the first real liberal and as the father of modern political philosophy.” [6] Furthermore, Boaz clarifies “liberalism” to mean “what we now call libertarianism.” [7]

While Locke’s theories of property rights and social contract are well known as founding principles of the U.S. Constitution, it is doubtful that he would be considered a true libertarian by Boaz’s modern standards. Just as he pronounces the inviolability of personal property, Locke also writes

“…for men being all the workmanship… and… all the servants of one sovereign master… they are his property, whose workmanship they are, made to last during his, not one another's pleasure.” [8]

Locke clearly bases his political philosophy on subjective religious morals, not objective principles of individual rights. It is not intrinsically wrong to harm another individual’s property, rather it is wrong to offend God’s property, which includes one’s own self. Locke’s argument thus lends little support to libertarian efforts to legalize drugs and assisted suicide.

Additionally, Locke’s theory is quite compatible with redistributive social programs. Locke defines the taking of resources as consistent with the natural law only insofar as “more than the yet unprovided could use” is left behind. [9] Although money reduces the likelihood of waste caused by amassing resources [10] , it does not prevent the limitation of equal access to natural resources caused by selfishness. Therefore, the minimalist, laissez-faire state that will “unfairly allow some to acquire greater advantage than others from their acquisition of…resources” [11] is incompatible with Locke’s support of a more compassionate economic model.

United States Constitution
Having the most direct impact on any discussion of the purposes of American government, is the United States Constitution, a document some describe as “carefully enumerat[ing] the powers that the federal government would have” in order to preserve Locke’s view of a state grounded in the protection of individual property. [12] The problem with this characterization is that the Constitution, like Locke’s Second Treatise, affords weight to concepts greater than that of the individual. Looking at the preamble:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” [13]

Even if “ourselves” refers to individual selves and not a society as a whole, the benefit of the individual can be seen as only one of six reasons for the creation of the Constitution. The phrase appears again in the Legislative Powers section in granting Congress the express right to “provide for the common defense and general welfare of the United States.” In Federalist No. 41 James Madison argued that goal of giving “general” powers would be contradictory to the aforementioned goal of a strict enumeration of powers [14] however of these competing goals, only the former is literally reflected in the Constitution.

Further complicating a libertarian reading of the Constitution is the so-called Commerce Clause. In Section 8 Congress is granted the power “to regulate commerce… among the States,” an exercise expressly rejected by the laissez-faire approach. Thus, far from sacrificing “public and social” powers to promote individual rights, as Rand has argued, it seems the Constitution does the exact opposite – it contends that in certain instances individual liberties may be sacrificed for the greater good.

Conclusion
Libertarianism certainly has roots in the Magna Carta, Locke’s Second Treatise, and the U.S. Constitution, however these roots are not exclusive. While each of these works has contributed to modern libertarian thought, none expressly promoted the idea that the rights of the individual must always come before societal goals. The Magna Carta entrenched feudal hierarchies that are fundamentally incompatible with personal liberty. Locke wished to end tyrannical governments through social contract and the protection of property rights, but he also believed in the decidedly non-libertarian notions of individuals being limited by religious rules and ensuring equal access to resources. The authors of the Constitution listed inviolable liberties in the Bill of Rights but never stated that social welfare powers must be renounced in order to protect the individual.

Thus, it should be no surprise that laws preserving public health by prohibiting narcotics and regulating the contents of food, beverages, and cosmetics as well as laws promoting social equality through Medicare and Social Security form the cornerstone of federal agendas, despite the complaints of those who long for a free market and a minimalist state. While Rand is correct in stating that “the Constitution was written to protect man from the government” it is pure revisionism to propose that the Constitution is prima facie opposed to the existence of federal social powers. Contractually limited states have always held functions outside of the mere protection of property just as liberal political thinkers have simultaneously considered both individual rights and ordered society. In this light, the host of current welfare laws that happen to infringe upon liberties should be seen not as historical anomalies but as a constant presence in a political system designed to juxtapose personal freedoms with the well-being of society and establish a suitable balance.

[1] Ayn Rand, The Virtue of Selfishness. (New York: Penguin, 1964), p. 111-112.

[2] James Clarke Holt, Magna Carta. (Cambridge Univ. Press, 1965), p. 1

[3] Bob Barr, “Bush Blasts at the Bedrock of our Liberty,” Atlanta Journal Constitution, 7 Feb. 2007. B1

[4] Magna Carta. 1225, cap 29; 1215, cap. 39

[5] Holt, p. 2.

[6] David Boaz. Libertarianism: A Primer. (New York: The Free Press, 1997), p. 36.

[7] Ibid, p. 40.

[8] John Locke, Second Treatise of Civil Government. (1690), Chap. 2, sec. 6.

[9] Ibid, sec. 33.

[10] Ibid, sec. 35-6.

[11] Michael Otsuka, Libertarianism Without Inequality (Oxford: Clarendon Press, 2003), p. 24.

[12] Boaz, p.44-5.

[13] “The Constitution of the United States of America”, 1778, Preamble.

[14] James Madison, “The Federalist No. 41” Independent Journal, 19 Jan. 1778.