The Great Bequest; T. G. Palmer

The GreatBequest by Tom G. Palmer L imited government is one of the greatest accomplishments of humanity. It is imperfectly enjoyed by only a portion of the human race, and, where it is enjoyed, its tenure is ever precarious. The experience of the twentieth century is surely witness to the insecurity of constitutional government and to the need for both courage in achieving it and vigilance in maintaining it. Advocates of limited government are not anti-government per se, as some people would charge. Rather, they are hostile to concentra tions of coercive power and to the arbitrary use of power against right. With a deep appre ciation for the lessons of history and the dangers of unconstrained government, they are for constitutional limitations: government should have the delegated authority and means to protect our rights, but not be so powerful as to destroy or negate them. The American system was established to provide limited government. The independent existence of the United States was based on certain truths: that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happi ness-That to secure these Rights, Gov ernments are instituted among Men, derivTom Palmer is director of the Project for a Civil Society at the Cato Institute. This article is adapted from the Cato Handbook for Congress.

ing their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Gov ernment, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. On this foundation the American Founders established a system of government based on delegated, enumerated, and thus limited powers. The American Founders did not pluck these truths out of thin air, nor did they simply invent the principles of American govern ment. They drew from their knowledge of thousands of years of human history, during which many peoples struggled for liberty and limited government. There were both defeats and victories along the way. The results were distilled in the founding documents of the American experiment in limited government: the Declaration of Independence, the Articles of Confederation, the state constitutions, and the Constitution of the United States.

Students of History The American Founders were careful stu dents of history. It was Thomas Jefferson, in his influential A Summary View of the Rights of British America, prepared in 1774, who noted that "history has informed us that bod29 30 THE FREEMAN/IDEAS ON LIBERTY • MARCH 1999 ies of men as well as individuals are suscepti ble of the spirit of tyranny." Another Founder, Patrick Henry, devoted great attention to the study of history. He summed up the impor tance of history thus: "I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging the future but by the past." History-the lamp of experience-is indispensable to under standing and defending the liberty of the indi vidual under constitutionally limited, repre sentative government. Through the study of history the Americans learned about the division of power among judicial, legislative, and executive branches; about federalism; about checks and balances among divided powers; about redress and rep resentation; and about the right of resistance, made effective by the legal right to bear arms, an ancient right of free persons. Liberty and limited government were not invented in 1776; they were reaffirmed and strengthened.

The American Revolution set the stage for the benefits of liberty and limited government to be extended to all. As John Figgis, professor of modern history at Cambridge University, noted at the turn of the century: The sonorous phrases of the Declaration of Independence . . . are not an original dis covery, they are the heirs of all the ages, the depository of the emotions and the thoughts of seventy generations of culture. The roots of the history of limited govern ment stretch far back, to the establishment of the principle of the higher law by the ancient Hebrews and by the Greek philosophers. The story of the Golden Calf in the Book of Exo dus and the investigations of nature by Aristo tle both established-in very different ways the principle of the higher law. Law is not merely an expression of will or power; it is based on transcendent principles. The legisla tor is as bound by law as is the subject or cit izen; no one is above the law.

Many strands have been entwined to form the fabric of liberty: • The struggle between church and state, which was put into high gear in the Latin West Patrick Henry (1736-1799) by Pope Gregory IV in the eleventh century under the motto, "freedom of the church." This movement, which created an institution al distinction between the church and the sec ular authorities, was the first major "privatiza tion" of a previously state-owned industry (the church) and provided the foundation for such important institutions as the rule of law and legal accountability, federalism, and the independent and self-governing associations that make up civil society. • The growth of civil society in the self governing chartered towns of Europe, in which the guiding principle was "city air makes one free." The independent cities of Europe were the seedbeds of modem civil society-of the market economy, of personal liberty, and of the security of person and property.

• The fixing of limits on the powers of monarchs and executives through written con stitutions. The Magna Carta of 1215 is the most memorable of those documents to inher itors of the Anglo-Saxon political tradition. It included the requirement that taxes could not be imposed without the consent of the "gen eral council of the realm," which provided the origin of the English parliament, as well as other specific limitations on the king's power, including the stipulations that no one be imprisoned, outlawed, or exiled, or his estate seized, "except by the lawful judgment of his peers or the law of the land" and that "mer chants shall have safe conduct in and out of England." This was the precursor of the Peti tion of Right of 1628, the Bill of Rights of 1689, the American Declaration of Indepen dence, and the American Constitution and Bill of Rights. Those various movements reinforced each other in a multitude of ways. The assertion of the freedom of the church and even of its supremacy over the secular powers was bound up with the idea of the higher law, by which all are judged-emperor, pope, and peasant alike. As legal scholar Henry Brac ton, a judge during the reign of Henry III, noted of the royal authority, "The law makes him king. Let the king therefore give to the law what the law gives to him, dominion and power; for there is no king where will, and not law, bears rule." Were the king to consid er himself above the law, it was the job of the king's council-the precursor of parlia ment-to rein him in: "if the king were with out a bridle, that is, the law, they ought to put a bridle upon him." Not only was the nascent parliament above the king; the law was above the parliament, as Sir Edward Coke noted in the seventeenth century: when an act of Parliament is against com mon right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.

Law Supreme The supremacy of the law over the exer cise of power is a hallmark of the Western legal tradition. The rule of law is not satisfied by merely formal or ceremonial exercises, such as the publication of edicts in barely understandable form, whether in the archaic "Law French" of the king's courts or the pages of the Federal Register; the laws must THE GREAT BEQUEST 31 be understandable and actually capable of being followed. There was also widespread recognition of the principle of reciprocity between the hold ers of power and the general populace. Rights were spelled out in contractual form in con stitutions and charters. Those rights were not gifts from the powerful, which could be taken away on a whim, but something on which one could take a stand. Tied up in the notion of a chartered right was the ancillary right to defend that right, even to the point of resis tance with force of arms. The higher law, rec iprocity and mutuality of obligations, written charters of rights, the right to be consulted on policy and to grant or refuse one's consent, and the right of resistance in defense of those rights are the foundations of constitutionally limited government. They were won over many centuries at great sacrifice.

Just how precious this heritage is can be gleaned from comparing it with the history of Russia, where, until very recently, there was no reciprocity between rulers and ruled, no independent power able to challenge the rulers. The principality of Muscovy and its successors were despotic to a high degree, with no charters of liberty, no power higher than the Tsar (or his successor, the Commu nist Party), no limits on powerin effect, no law. As Harvard University historian Richard Pipes noted in his book Russia under the Old Regime, "There is no evidence in medieval Russia of mutual obligations binding prince and his servitor, and, therefore, also nothing resembling legal and moral 'rights' of sub jects, and little need for law and courts." The immense difficulties in establishing the rule of law, a system of well-defined and legally secure property, and a market economy are testimony to the great and vital importance of building on a tradition of stable, constitution ally limited government. They also remind us how important it is for us to maintain our her itage of limited government and the rule of law.

Liberty Versus Power The struggle for limited government was a struggle of liberty against power. The 32 THE FREEMAN/IDEAS ON LIBERTY • MARCH 1999 demands for religious liberty and the protec tion of property were fused in the heroic resis tance of the Netherlands to the Empire of Spain in their great revolt. The Dutch became a shining example of what was possible when people were free: prosperity was possible without the guiding hand of the king and his bureaucrats; social harmony was possible without enforced religious conformity; law and government were possible without an unlimited and absolute sovereign. The Dutch inspired the English to rise up against the Stuart kings, who sought to fasten upon the English the absolutism that had made such headway on the Continent. The American Revolution was one link in a long chain of revolutions for liberty. The story of the attempts to institute abso lutism in the Netherlands and in England was well known by the American Founders, who were, after all, British colonists. One cannot understand the American attempt to institute limited representative government without understanding the history of England. What they were struggling against was the principle that the powers of the state are "plenary," that they fill up the whole space of power. King James I of England (then King James VI of Scotland) had written in 1598 that "the King is above the law, as both the author and giver of strength thereto." In 1610 James made A Speech to the Lords and Commons ofthe Par liament at White-Hall in which he railed against the notions of popular consent and the rule of law and stated that "as to dispute what God may do is blasphemy ... so it is sedition in subjects to dispute what a king may do in the height of his power."

In other words, there are no limits to power. Distinct echoes of that view are still heard today. For example, the solicitor general of the United States, Drew Days, arguing in the case of United States v. Lopez before the Supreme Court, was unable to identify a sin gle act of Congress, other than those express ly prohibited by the Constitution, that would be impermissible under the administration's expansive view of the Commerce Clause. Solicitor Days contended that the powers of Congress are plenary, that is, unlimited, unless, perhaps, specifically prohibited. That all-too-common view turns the notion of limited government on its head. Limited government means that government is limited both to the exercise of its delegated powers and in the means it can employ, which must be both "necessary and proper." The English Revolution of 1640, the Glorious Revolution of 1688, and the American Revolution of 1776 were fought precisely to combat unlim ited government. What Americans need is not unlimited government, as Days proposes, but limited government under law, exercising del egated and enumerated powers. That is how the equal liberties of citizens are protected. As the philosopher John Locke, himself an active participant in the struggles for limited gov ernment in Britain and the primary inspiration of the American revolutionaries, argued in his Second Treatise of Government: "the end of Law is not to abolish or restrain, but to pre serve and enlarge Freedom: For in all the states of created beings capable of Laws, where there is no Law, there is no Freedom.

For Liberty is to be free from restraint and violence from others, which cannot be, where there is no Law." Unprecedented Liberty The American experiment in limited gov ernment generated a degree of liberty and prosperity that was virtually unimaginable only a few centuries before. That experiment revealed flaws, of course, none of which was more striking and repugnant than the tolera tion of slavery, or "man-stealing," as it was called by its libertarian opponents, for it deprived an individual of his property in his own person. That particular evil was eliminat ed by the Thirteenth Amendment to the Con stitution, showing the self-correcting nature and basic resilience of the American constitu tional system, which could survive such a cat aclysm as the Civil War. Other flaws, however, have been revealed or have surfaced since. Among them are the following: •An erosion of the basic principles of fed eralism, as the federal government has consis tently encroached on the authority of the The Foundation for Economic Education Irvington-on-Hudson, New York 10533 Tel. (914) 591-7230 Fax (914) 591-8910 E-mail: freeman@fee.org Web site: www.fee.org March 1999 Brutes in Suits S ta.tists on the left habitually congratu late themselves on their humanity.

They croon on endlessly about peace, harmony, cooperation, community, mutual understanding, tolerance, and diversity. They profess to abhor violence and cruelty. They apparently regard candlelight vigils featuring dozens of people swaying in uni son and singing about love-as the most transcendent form of self-entertainment. Statists on the right don't get teary-eyed at the mention of "peace" or "diversity," and most are as likely to attend a candle light vigil as Bill Bennett is to model fash ions by Dennis Rodman. But statists on the right nevertheless profess a high regard for peace and a hatred of violence. But while their particulargoals may dif fer, all statists are hypocrites. Their distin guishing mark (whether they realize it or not) is that they all advocate government a·s-thuggery. Statists, whether on the left or on the right, advocate that government unleash its coercive powers in various and sundry ways, most of which would be criminal if done by private people.

The thugs in question happen to dress well, are well-coifed, and are (usually) articulate. But what makes someone a thug is not how he looks or what he proclaims to be his ultimate motive, but, rather, what he does. And most of what politicians now do is sophisticated thuggery. They're brutes in suits who sell to the highest bid ders their willingness to coerce innocent people. Here's an imperfect, but useful, way to test whether or not some government activity is thuggery. Ask: Is the activity one that ordinary people could ethically do on their own, either individually or in a group, in the absence of government? If the answer is yes, the government activity isn't thuggery. If the answer is no, the gov ernmentactivity is thuggery. Consider, for example, a police officer directing traffic. This activity is legitimate; it isn't thuggery. It's legitimate because there is nothing inherently unethical about a private citizen directing traffic on a busy street. The same is true for government efforts to nab murders, rapists, thieves, and arsonists. Depending on your view of government, you might or might not trust government to perform these tasks effec tively. You might also believe that even these tasks are best left to the private sec tor, or, instead, you might believe that it's prudent to assign these tasks to govern ment exclusively. Either way, none of these tasks would be considered criminal or illegitimate if carried out by private per sons in the absence of government. (Even legitimate activities arguably become illegitimate if they areJunded through coer cive means, such as taxation by govern ment. No private citizen can ethically con fiscate resources from others even if these resources will be used in ways that nearly everyone approves. Recognizing that I am skipping blithely over a fundamentally important issue, I ignore here the problems created by taxation.) Regrettably, the overwhelming bulk of what government actually does today even apart from using taxation to fund its efforts-would be (correctly) considered criminal if private persons did these things.

Examples are legion. Here's one: mini mum-wage legislation. Suppose your neighbor offers to hire at $3.00 per hour someone to work in his supermarket. Would it be moral for you to stick a gun to your neighbor's head and order him not to hire anyone for less than $5.15 per hour? Of course not. Would it be moral for you to round up several of your friends into a mob and· threaten to lynch your neighbor if he insists on hiring workers for less than $5.15 per hour? Of course not. So what makes it legitimate for govern ment to threaten people with violence if they insist on hiring workers at less than the government-stipulated minimum wage? Nothing. Nothing at alL Consider other activities currently pur sued by government. Would it be morally acceptable for the president of Bethlehem Steel to stand on the wharves in Seattle and threaten to shoot anyone who dares to unload steel made in Asia? Obviously not.

It follows that import restrictions are immoral; only thugs promote and imp le mentthem. Would it be morally acceptable for you to burgle your wealthy neighbors' home and then give the funds to a poor family living across the tracks? Obviously not. It follows that government's efforts to redis tribute wealth are illegitimate. Would it be morally acceptable for you to imprison your neighbor and confiscate her property if she refuses to install a wheelchair ramp at her place of business? Would it be morally acceptable for you to storm into your neighbors' house and tote them off to a jail in your garage if you find that in the privacy of their own home your neighbors smoke marijuana or Cuban cigars? Would it be morally acceptable for you to inflict violence on Americans who refuse to obey your command that they not hire Mexican or Filipino workers? None of these activities enjoys any legit imacy when pursued privately. Indeed, they are all considered criminaL So why should government be allowed to do these things?

Most statists respond by intoning that democratic governments carry out the will of the people. If it's the will of the people that, say, no worker be paid less than $5.15 per hour, then the few selfish reprobates who would violate the collective will should be prevented from doing so. Numerous problems afflict this response, not least of which is the fact that democratic government at best carries out only the will of the majority. One of the most pernicious myths that today plague the popular political mind is that the appetite of some mysterious phantom called lithe will of the people" is justly sat isfied if as few as 50% of voters plus one acquiesce in schemes concocted by a cabal of politicians who are beholden to special interest groups. Sadly, the very logic of modern politics is that politicians and bureaucrats use the coercive powers of the state to transfer wealth from politically unorganized groups (for example, sugar consumers) to politically powerful groups (for example, sugar producers). But whether the state is coercing the minority to bow to the will of the majority, or coercing the majority to bow to the will of politically potent inter est groups, such coercion is wrong-and it gains not a smidgen of legitimacy when carried out by telegenic talking heads who work in marble-domed buildings and are dressed by Armani.

Beware of brutes in suits. Donald J. Boudreaux President • The March of History • W hat comes to mind when you think about the month of March? For many people it is the ominous-sounding "Ides of March," the day when Brutus slew the dictator Caesar, announcing as he committed the act, "Sic semper tyrannus" -"Thus always to tyrants." In recognition of the connection between March, history, and the state, we are putting four of our most interesting history titles on sale. These books will help bring new worlds to life for you-something Caesar could have used! Leviathan at War, Edmund Opitz, ed. Published in 1995,this anthology addresses a number of war-related topics, including the causes of war, conscription, weapons and prosperity, war and liberty, and peace and free trade. This collection contains work by Leonard Read (including his important "Conscience on the Battlefield"), Ayn Rand, Ludwig von Mises (on the economics of war], military historian B.H.

Liddell Hart, and Mark Twain, among others. One of our best FreemanClassics,this book pro vides an 'excellent foundation for arguing against the aggressive militarism so many govern ments adopt. 195 pages, paper $9.95 SALE: $4.00 Capitalism and the Historians, F.A. Hayek, ed.* How often do you hear that the Industrial Revolution was a disaster for workers? Many histori ans argue the Industrial Revolution caused wage rates and standards of living to plummet; that the movement away from farms and villages toward cities and factories was a truly dreadful development. This small book debunks these myths and provides evidence that the Industrial Revolution caused standards of living to rise, which in turn, led to a vastly improved quality of life. A great antidote to the leftist diatribes one often encounters when reading about the 19th century. 191 pages, paper $12.95 SALE: $6.00 The Industrial Revolution and Free Trade, Burton Folsom, ed.

More good stuff on the Industrial Revolution - one of mankind's true "great leaps forward." Dr. Burt Folsom brings together 22 essays that investigate the economic theories that under girded the Industrial Revolution, the consequences of the Industrial Revolution, and the case for free trade. This book has been called" a veritable gold mine of facts about the history of free trade and of the free market." This 1996work is great on its own or as a companion volume to Hayek's Capitalismand the Historians. 182 pages, paper $14.95 SALE: $7.00 Theory and History, Ludwig von Mises* In his preface, Murray Rothbard says this book "provides the philosophical backstop and elab oration of the philosophy underlying Human Action." This neglected work includes chapters on the Philosophy of History, the Concept of Historical Individuality, and the Meaning and Use of the Study of History. It is a powerful volume that illuminates Mises's earlier writings.

393 pages, cloth $14.95 SALE: $7.00 *quantities limited Postage& Handling: Please add $3 per order of $25 or less; $4 for orders of $25-50;$5 for orders over $50. Send book orders with check or money order to FEE, 30 S. Broadway, Irvington-on-Hudson, NY 10533. Visa, MC, Amex, Discover accepted ($10 min. please). Call 800.452.3518 An Evening with the Editor . .. Sheldon Richman "Separating School and State" Saturday, April 24, 1999, at FEE S heldon Richman has given a new look and fresh editorial voice to The Freeman.He has recruited some of the world's top journalists and renowned freemarket scholars to write for FEE's monthly magazine. And his own lively "Perspective" and "Peripatetics" columns are welcome additions to the editorial mix. Sheldon is also an informative and entertaining speaker. Get to know him better at our April Roundtable. This informal gather ing starts at 5 p.m. with a reception and dinner, followed by a spirited discussion on the perils of public education. Price is $35 per person.

For reservations,call JanetteBrownat (800) 452-3518. Other Forthcoming Events at FEE Undergraduate Seminar, March 18-20 Trustees Annual Dinner, May 16 Introductory Seminar in Economics, Politics, and History, June 26-July 1 Advanced Seminar, liThe Economics and Ethics of the State," August 7-12 states. Federal criminalization of acts that are already criminalized by the states, for exam ple, usurps state authority (as well as circum venting-opinions of the Supreme Court notwithstanding-the prohibition of double jeopardy in the Fifth Amendment to the Con stitution). An even more striking contempo rary example of the overreach of federal law is the continued exercise of federal controls over marijuana use in states-California and Arizona-that have legalized the medical use of that drug. The Tenth Amendment is quite explicit on this point: "The powers not dele gated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

• Violation of the separation of powers between the various branches of government. In article I, section 8, for example, the Con stitution explicitly reserves the power to declare war to the Congress, a power that the Congress has allowed to be usurped by the executive branch and which it should retake to itself. Further, the Congress has illegally exceeded its authority by delegating its leg islative powers to administrative agencies of the executive branch, such as the Food and Drug Administration and the Federal Trade Commission. In addition to violating the Con stitution, that has led to the erosion of the rule of law, as such administrative agencies have burdened the population with an unimagin ably complex welter of edicts; the Federal Register runs to some 60,000 pages per year, representing a degree of minute regulation that is unreasonable and burdensome and that virtually guarantees that any citizen involved in a commercial transaction, for example, will run afoul of some part of it, no matter how well intentioned or scrupulous he may be.

Such a situation is an invitation to the arbi trary exercise of power, rather than the appli cation of law. • Inattention to the important role of the federal judiciary as a check on arbitrary and unauthorized exercises of power. Especially since the threatened Court-packing "constitu tional revolution of 1937," there has been too little attention by the federal judiciary-and THE GREAT BEQUEST 33 Harlan F. Stone (1872-1946) by the Congress in ratifying judicial nomi nees-to fulfilling the role of the courts in enforcing constitutional restraints on both the federal and the state governments. For exam ple, the Supreme Court has not consistently applied the prohibitions of the First Amend ment to either commercial speech or political speech (the latter in the context of campaign finance), nor has the Court rectified the novel (and specious) distinction between personal liberties and economic liberties drawn by Jus tice Harlan F. Stone in United States v. Caro lene Products Co. (1938).

• The failure to pass a constitutional amendment limiting members of the Senate to two terms and members of the House of Rep resentatives to three terms. Just as the presi dent is limited in the number of terms he can serve, so should be the other elected branch of government, to guarantee the rotation in office that the Founders believed essential to popular government. Needed Corrective Those flaws can, however, be corrected. What is needed is the courage to place the health of the constitutional order and the 34 THE FREEMAN/IDEAS ON LIBERTY • MARCH 1999 future of the American system above short term political gain. The original American Founders were willing "to mutually pledge to each other our Lives, our Fortunes, and our sacred Honor." Nothing even remotely approaching that would be necessary for today's members of Congress to renew and restore the American system of constitutional ly limited government.

The challenge facing Americans today in defending constitutionally limited govern ment was succinctly stated by the English lib ertarian Herbert Spencer in 1884: The function of Liberalism in the past was that of putting a limit to the powers of kings. The function of true Liberalism in the future will be that of putting a limit to the powers of Parliaments. D Suggested Readings Berman, Harold. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass.: Harvard University Press, 1983. Boaz, David. Libertarianism: A Primer. New York: Free Press, 1997. Boaz, David, ed. The Libertarian Reader: Classic and Contemporary Readings from Lao-tzu to Milton Friedman. New York: Free Press, 1997. Bramsted, E. K., and K. 1. Melhuish, eds. Western Liberalism: A History in Docu ments from Locke to Croce. New York: Longman, 1978. Brooks, David L., ed. From Magna Carta to the Constitution: Documents in the Struggle for Liberty. San Francisco: Fox & Wilkes, 1993.

Ely, James w., Jr. The Guardian of Every Other Right: A Constitutional History of Property Rights. New York: Oxford Univer sity Press, 1998. Epstein, Richard A. Simple Rules for a Com plex World. Cambridge, Mass.: Harvard University Press, 1997. ___. Takings: Private Property and the Right of Eminent Domain. Cambridge, Mass.: Harvard University Press, 1985. Hamilton, Alexander, James Madison, and John Jay, The Federalist Papers. New York: Mentor, 1961. Hayek, F. A. The Constitution of Liberty. Chicago: University of Chicago Press, 1960. Higgs, Robert. Crisis and Leviathan: Critical Episodes in the Growth ofAmerican Gov ernment. New York: Oxford University Press, 1987. Jefferson, Thomas. "A Summary View of the Rights of British North America." In The Portable Jefferson. New York: Penguin Books, 1977. Locke, John. Two Treatises of Government. 1690. Cambridge: Cambridge University Press, 1988.

Sidney, Algernon. 1698. Discourses Concern ing Government. Indianapolis: Liberty Fund, 1990. Spencer, Herbert. Political Writings. Cam bridge: Cambridge University Press, 1994. Storing, Herbert, ed. The Anti-Federalist. Chicago: University of Chicago Press, 1985.