Libertarians are still trying to claim the American Founding as theirs. One occasionally hears the argument that the principles of the Constitution and Declaration of Independence are libertarian. One of the most recent instances of this claim resides in Nikolai Wenzel’s first-rate defense of libertarianism in “Selfish Libertarians and Socialist Conservatives?” (Stanford: 2017). Yet a closer look at the Founders’ thought about government makes clear that it was anything but libertarian.
Wenzel notes there are different types of libertarianism. He clarifies that “unless I specify otherwise, I will use the term libertarian to mean minarchy.” Minarchist libertarianism holds that government exists only to protect individuals’ rights. “A libertarian government is forbidden from doing almost everything,” Wenzel states. “In fact, a libertarian government is empowered to do only one thing: defend individual rights.”
Wenzel’s argument for a libertarian Founding rests largely on the Constitution and Declaration of Independence. Indeed, his claims do seem superficially persuasive.
The Constitution limits the federal government to the exercise of a few specific powers. Surely, this is a classic instance of libertarian philosophy limiting the sphere of government, is it not? As Wenzel argues, “By and large, the enumerated powers granted to the federal government under Article I, section 8, are in line with libertarian philosophy.” He recognizes that elements of the Constitution violate libertarian principles, but his overall evaluation is that “The U.S. Constitution was largely a libertarian document.”
The Declaration, argues Wenzel, is more explicitly libertarian. It declares that all possess natural rights and that governments are created to protect those rights. “There, then,” says Wenzel, “is the political philosophy of the Declaration: The purpose of government is to protect rights. Period.” He calls this “a minimalist philosophy with which any libertarian would agree.”
The Fatal Flaw: A Different Understanding of Rights So far, all of this sounds quite convincing, but there is a fatal flaw in Wenzel’s argument. Both libertarians and the American Founders describe the purpose of government as the protection of rights. But by “rights” they mean two very different things.
For Wenzel, respecting others’ rights simply means refraining from coercion. The state exists only to protect rights, and therefore, “the state itself may not engage in any coercion, except to prevent coercion.” He argues that participants in immoral trades, such as “The drug pusher, the prostitute, and the pornographer,” do not violate others’ rights “as long as they do not coercively impose their wares on others.” Nor does the polygamist.
Wenzel’s coauthor Nathan Schlueter points out the problem with this position: “Libertarianism essentially denies that…moral harms exist and maintains that the only real injustice is coercion. Accordingly, it promotes a legal regime in which some individuals are legally entitled to harm others in noncoercive ways.” Wenzel assumes that only coercion violates rights. The Founders profoundly disagreed.
A Second Look at the Founding Creed Think again about the alleged libertarianism of the Founding documents. Wenzel makes a common mistake in assuming that the limitation of the national government to a few specific enumerated powers reflects libertarian belief. But this limitation has nothing to do with libertarianism. It has everything to do with federalism.
The federal government was only created to fulfill certain limited, particular purposes. It was not created to do everything the Founders believed government should do. Most of those functions—and, on the whole, those less compatible with libertarianism—were entrusted to the states. The fact that the enumerated powers of the federal government are largely consistent with libertarianism does not mean the Founders were libertarians. It means nothing at all, in fact. It is a conclusion based on only half the data.
Actually, the enumeration of federal powers is more an accident of history than anything else. James Madison’s original proposal was that the national government simply possess blanket authority “to legislate in all cases to which the separate States are incompetent.” The Constitutional Convention ultimately chose to list its powers, believing this was less liable to abuse, but this decision was by no means dictated by the Founders’ beliefs about government.
As for the Declaration, it does not say that government exists only to protect individuals’ life, liberty, and property. A libertarian right to be free of coercion is not intended here. Instead, the Declaration states that life and liberty are included “among” the natural rights of mankind, as is something else referred to as “the pursuit of happiness.” The right to happiness was not simply sweet-sounding rhetoric. It was the centerpiece of the Founders’ political theory.
Government for the Common Good The Founders’ political theory was not libertarian, because they believed that the preeminent human right was happiness. The Massachusetts Constitution of 1780, for example, states: “All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness” (emphases added).
As the language makes clear, the rights of man could be expressed as a list of rights that includes life, liberty, and property. But the great right that encompassed all others was the right to pursue (or even obtain!) happiness. Assertions of this right to happiness appear in many Founding-Era writings, including other state constitutions.
The purpose of government, in turn, was to help people achieve happiness by promoting their good. Delegate to the Constitutional Convention James Wilson wrote one of the most thorough expositions of the Founding philosophy—his famous “Lectures on Law.” In them, he explains that the purpose of government is to promote the well-being of those subject to it: “Whatever promotes the greatest happiness of the whole,” that is what government should do.
Once again, this sort of talk is commonplace. Twelve of the 13 original states adopted a constitution in the Founding Era. Every one of these states described the purpose of government as promoting the well-being of citizens. The New Hampshire constitution of 1784 is typical, holding that “all government…is…instituted for the general good.”
What Conservative Governance Means Because the general good includes the moral good, this meant discouraging immoral behavior. Wenzel speaks of voluntary drug and sexual matters as beyond the purview of a libertarian government. But such laws were universal in early America.
Thus Mark Kann writes in “Taming Passion for the Public Good” that “the state’s right to regulate sexual practices…was undisputed” in early America, and Wilson notes bigamy, prostitution, and indecency as offenses subject to punishment on Founding political theory. Similarly, in “Federalist” 12, Alexander Hamilton cites the beneficial impact on morals as a justification for federal taxation of alcoholic imports.
The Founders used government to discourage other noncoercive activities, as well. In 1778, Congress recommended to the states “suppressing theatrical entertainments, horse-racing, gambling, and such other diversions as are productive of idleness, dissipation, and a general depravity of principles and manners.” In his book, “The People’s Welfare,” William Novak details the extensive regulation of everything from lotteries and usury to Sunday travel, coarse language, and poor relief that was the norm during the Founding Era.
The American Founders believed that government exists to protect rights, just as libertarians do. But their understanding of rights was radically different from the libertarian understanding. Libertarians like Wenzel believe that protecting rights means prohibiting coercion. The Founders believed that protecting rights meant seeking the moral and material well- being of society. The American Founding was conservative, not libertarian. Libertarians will have to look elsewhere to support their beliefs.
Jonathan Ashbach is a PhD student in politics at Hillsdale College. Jonathan has worked in the hospitality industry and as assistant editor for the Humboldt Economic Index. His work has also been published on Patheos and Christianity Today.
#7: no gnu taxes To: A K A Stone (#0)
no gnu taxes posted on 2018-01-25 12:15:12 Reply Private Reply
#8: A K A Stone To: no gnu taxes (#7)
Like legalizing harmful drugs. Like open borders. Like faggot pretend marriage.
A libertarian came and visited us in high school many moons ago. He was an idiot.
Libertarian equals amoral thinking. They equate moral and immoral.
A K A Stone posted on 2018-01-25 12:18:35 Reply Private Reply
#9: Tooconservative To: misterwhite (#6)
More accurately, it took the Court and the judicial power it claimed for itself, entirely apart from the Constitution, in Marbury v. Madison to impose constitutional protections to state laws as well as the federal government.
It was always inconsistent to recognize that citizens had a list of natural rights inherent to all human beings and then allow states to abuse those rights willynilly. The Court resolved this contradiction over time, weakening states' rights in favor of individual rights.
Tooconservative posted on 2018-01-25 12:22:25 Reply Private Reply
#10: Hank Rearden To: A K A Stone (#2)
Such an ignorant statement.
Hank Rearden posted on 2018-01-25 12:49:40 Reply Private Reply
#11: tpaine To: Tooconservative, y'all (#5)
Well put...
And as usual, by touting out his silly argument that States were supposedly given the power to ignore our inalienable rights, misterwhite once again displays his socialist/statist leanings..
Thanks..
tpaine posted on 2018-01-25 12:55:21 Reply Private Reply
#12: A K A Stone To: Hank Rearden (#10)
A K A Stone posted on 2018-01-25 12:57:19 Reply Private Reply
#13: misterwhite To: Hank Rearden (#10)
Amoral, not immoral. And Libertarianism IS amoral.
misterwhite posted on 2018-01-25 13:01:43 Reply Private Reply
#14: A K A Stone To: misterwhite (#13)
A K A Stone posted on 2018-01-25 13:03:32 Reply Private Reply
#15: no gnu taxes To: A K A Stone (#8)
Maybe true. However, there is a difference between libertines and libertarians.
no gnu taxes posted on 2018-01-25 13:12:50 Reply Private Reply
#16: Tooconservative To: A K A Stone, misterwhite, Hank Rearden (#14)
I begin to think you don't grasp the difference between amoral and immoral.
You keep saying 'amoral' when you seem to intend 'immoral'.
Oxford Concise Dictionary:
Immoral means ‘failing to adhere to moral standards.’ Amoral is a more neutral, impartial word meaning ‘without, or not concerned with, moral standards.’ An immoral person commits acts that violate society's moral norms. An amoral person has no understanding of these norms, or no sense of right and wrong. Amoral may also mean ‘not concerned with, or outside the scope of morality’ (following the pattern of apolitical, asexual). Amoral, then, may refer to a judicial ruling that is concerned only with narrow legal or financial issues. Whereas amoral may be simply descriptive, immoral is judgmental.
Tooconservative posted on 2018-01-25 13:36:55 Reply Private Reply
#17: misterwhite To: Tooconservative (#16)
Libertarians take no moral position on abortion, gambling, prostitution, porn, suicide, or age of consent. They simply say the government should not be involved in those areas.
To me, that's an amoral position. By definition.
misterwhite posted on 2018-01-25 13:47:43 Reply Private Reply
#18: Vicomte13 To: Tooconservative (#5)
You're basically right in this analysis.
Here's really the problem: when WE in OUR time, talk about "liberty" and get impassioned about it, what WE mean, really, broadly speaking, is SEXUAL liberty and the liberty to do DRUGS.
Nobody in 1787, and I really mean NOBODY, thought that homosexual sodomy was a matter of "liberty". THAT was simply depravity, and "liberty" was exalted, while libertinism - specifically debauchery - was criminal.
Drugs were not something anybody thought about legislating against in those days.
These were not issues "lurking" that the Founders figured would be dealt with later (FIRST let's get a country, then we'll worry about these things) - slavery is THAT issue - but drugs were not on the cards, and nobody had sexual libertinism in mind when he used the word "liberty".
WE obsess about sex as a society, and skin color; and some of us (more here than elsewhere, about drugs: two of these issues were not in the empire of liberty in 1787. Slavery WAS on people's minds - John Adams, for example, saw it for what it was: a violation of the whole principle of equality. The further South one went, the less that view was held. SOME of the Founders recognized slavery as a true issue of liberty. Not one of them - not John Adams, not anybody living back then - even considered that homosexual sodomy or polygamy were matters within the empire of Liberty at all.
Vicomte13 posted on 2018-01-25 13:48:45 Reply Private Reply
#19: Tooconservative To: misterwhite (#17)
That isn't universal because thee are, for instance, libertarians that are very pro-life. Perhaps a majority of Libertarian Party members are still pro-life (though the leadership is not). But there are many kinds of libertarians and they emphasize different aspects of libertarian philosophy. For instance, a majority of libertarians embrace the Non-Aggression Principle. These are essentially pacifists who do believe in a right to self-defense, the so-called natural-rights libertarians. But that is just one flavor of libertarian.
You also have the Objectivists, people who advocate for Ayn Rand's Objectivist philosophy. You have anarcho-capitalists. And Left-libertarians. And lots of others.
The libertarians are by no means a monolithic group. They're a herd of cats.
Tooconservative posted on 2018-01-25 13:55:34 Reply Private Reply
#20: Tooconservative To: Vicomte13 (#18)
Certainly not Thomas Jefferson who authored the very strict laws against sodomy in his home state of Virginia. Yet he would not have imagined trying to codify this as federal law. Neither would any of the other Founders.
Tooconservative posted on 2018-01-25 13:57:13 Reply Private Reply
#21: tpaine To: All (#0)
The 'era' above ended with the ratification of the first ten amendments in 1791.. After this date, States were "bound" to the "supreme Law of the Land", --- "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Unfortunately, many States ignored the supremacy clause, and it took the civil war (and the 14th Amendment) to LEGALLY resolve the issue.
Our rights are still being infringed by unconstitutional state 'laws', -- that attempt to regulate morals, drugs, guns, -- you name it.....
tpaine posted on 2018-01-25 14:00:45 Reply Private Reply
#22: Tooconservative To: tpaine (#21)
Sure. But Congress knew they had no power to pass federal legislation in these areas.
Certainly, they still had the right to free speech and to advocate public policy back in the States even if they knew they couldn't enact statutes like that at the federal level.
The Founders clearly knew that there was a fundamental contradiction in declaring the natural rights of man but still allow slaves to be held in perpetuity while yet counting them as three-fifths of a person for Census purposes so as to grant to the Southern slave states an increase in the number of seats they held in the House. This was an inducement to the South to join the Union. But sooner or later, there was going to be a resolution. Unfortunately, we killed 800,000 soldiers in the Civil War and then allowed 1.4 million or more former slaves to die of neglect and bad hygiene in post-war concentration camps throughout the South.
Tooconservative posted on 2018-01-25 14:05:59 Reply Private Reply
#23: Hondo68 To: A K A Stone (#0)
What exactly is a libertarian?
"Libertarianism is the political philosophy that people have the authority to determine and pursue their own self-interest, and that government is only authorized to restrict freedom when the freedom of two people are in conflict with each other."Hondo68 posted on 2018-01-25 14:36:52 Reply Private Reply
#24: Hank Rearden To: misterwhite, A K A Stone (#13)
You say that as if you've ever met any of us. Which, obviously, you have not.
Hank Rearden posted on 2018-01-25 14:45:26 Reply Private Reply
#25: A K A Stone To: Tooconservative (#16)
A K A Stone posted on 2018-01-25 14:45:54 Reply Private Reply
#26: A K A Stone To: misterwhite (#17)
Exactly misterwhite.
A K A Stone posted on 2018-01-25 14:47:05 Reply Private Reply
#27: misterwhite To: Tooconservative (#19)
Yet you felt comfortable characterizing the Founders as Libertarians.
misterwhite posted on 2018-01-25 14:48:45 Reply Private Reply
#28: Vicomte13 To: Tooconservative (#20)
True. He, and they - all of them - would have known that their state had its laws and enforced them, so there was no need for the federal government to be involved in criminal law matters.
None of them would have imagined that sodomy would be IMPOSED on the states by the Federal judiciary. Had they foreseen THAT, we would have a different judicial system.
Vicomte13 posted on 2018-01-25 14:51:17 Reply Private Reply
#29: Vicomte13 To: hondo68 (#23)
Vicomte13 posted on 2018-01-25 14:54:59 Reply Private Reply
#30: no gnu taxes To: misterwhite (#27)
I would say it matters how you define a Libertarian. If it it means you are free to live your moral life without a lot of government influence, then they were Libertarians.
no gnu taxes posted on 2018-01-25 14:58:45 Reply Private Reply
#31: misterwhite To: Hank Rearden (#24)
I don't need to meet people to comment on the principles of Libertarianism. And those principles advocate minimal government intervention.
A Libertarian, for example, doesn't need to favor abortion or oppose abortion. A Libertarian simply believes the government should not be involved in the decision.
That is an amoral (or non-moral, if you prefer) position.
misterwhite posted on 2018-01-25 15:01:47 Reply Private Reply
#32: misterwhite To: no gnu taxes (#30)
Hah! Like trying to nail Jell-O to a wall.
"If it means you are free to live your moral life without a lot of government influence, then they were Libertarians."
Libertarianism is not about morality. Libertarianism is about keeping the government away from the individual. If the individual leads a moral life or an immoral life, Libertarians don't care.
That makes them amoral. Which was the point.
misterwhite posted on 2018-01-25 15:10:11 Reply Private Reply
#33: misterwhite To: hondo68 (#23)
Some people want the freedom to use drugs, but I want the freedom to raise my young and impressionable children in a drug-free environment.
Now what?
misterwhite posted on 2018-01-25 15:14:51 Reply Private Reply
#34: tpaine To: Tooconservative (#16)
Granted, --- "An immoral person commits acts that violate society's moral norms."
But an amoral person, while understanding these norms, rejects the concept that a 'moral majority' can dictate what is right and wrong for everyone.
Many rules that are made by a majority restrict the non violent activities,-- the basic human rights of everyone else.
Legislating morality is unconstitutional.. --- Reasonably regulating public activities is a power given by the people to State/local governments..
tpaine posted on 2018-01-25 15:18:14 Reply Private Reply
#35: Hondo68 To: misterwhite (#33)
Prison. Build a wall with razor wire around your place so the kids don't escape.
It's for the children!
Hondo68 posted on 2018-01-25 15:22:57 Reply Private Reply
#36: tpaine To: hondo68, y'all (#23)
Why does misterwhite imagine that others using drugs (in private, because of reasonable regulations against public use) will affect his impressionable kids?
Why can't be raise his kids to be aware of the dangers of drug usage? -- What, he needs laws to protect his kids from his bad parenting?
tpaine posted on 2018-01-25 15:33:32 Reply Private Reply
#37: VxH To: A K A Stone (#0)
Liberty is a gift from God?
I'm sticking with the "Hostilitarian" perspective on that:
I HAVE SWORN UPON THE ALTAR OF GOD
ETERNAL HOSTILITY
TO EVERY FORM OF TYRANNY OVER THE MIND OF MAN
--
Thomas Jefferson
VxH posted on 2018-01-25 16:02:59 Reply Private Reply
#38: Tooconservative To: A K A Stone (#25)
You seem to object more to what you consider a lack of morality by libertarians. Surely you are not complaining foremost that libertarians completely lack any sense or consciousness of morality.
Tooconservative posted on 2018-01-25 16:42:51 Reply Private Reply
#39: Tooconservative To: misterwhite (#27)
What do you think your point is? The Founders themselves were far from being a monolithic group. Look how quickly the Federalist and Antifederalist factions squared up to fight it out politically. Many of the Founders were quite concerned to prevent other Founders from taking the country in a particular direction.
Tooconservative posted on 2018-01-25 16:45:20 Reply Private Reply
#40: Tooconservative To: tpaine (#34)
Great points. You could elaborate at book length on these topics, the big Philosophy Of Government issues.
Tooconservative posted on 2018-01-25 16:48:16 Reply Private Reply
#41: Tooconservative To: VxH (#37)
Philosophically, yes. Absolutely.
Otherwise, it is a mere privilege to be granted by a government arbitrarily and revoked at any time.
The Declaration took the same position, that King George III was taxing us without representation and was running roughshod on the colonies, making him a tyrant. The Declaration radically argued (for the era) that a lawful monarch could become a tyrant and therefore abdicate the fealty of his subjects (the colonial rebels, i.e. the Founders).
Even if you're an atheist, you should insist that God is the Author of our natural rights, as enumerated in the Bill of Rights. Otherwise, you don't have any rights, just privileges granted, the same way a drivers license is a privilege granted by the state.
A right is far more valuable than a privilege.
Tooconservative posted on 2018-01-25 16:52:53 Reply Private Reply
#42: A K A Stone To: tpaine (#34)
Hey dumbass yes I'm talking to you dumbass murder and Steeling are immoral and they are illegal I guess they should be legal huh dumbass?
A K A Stone posted on 2018-01-25 16:55:45 Reply Private Reply
#43: A K A Stone To: Tooconservative (#40)
A K A Stone posted on 2018-01-25 16:57:30 Reply Private Reply
#44: Tooconservative To: A K A Stone (#43)
Tooconservative posted on 2018-01-25 17:05:01 Reply Private Reply
#45: tpaine To: A K A Stone (#42)
Murder and 'Steeling' are violent criminal acts that every government has made illegal. The people of the USA gave them that power.
Our various levels of government have never been given the power to legislate morality.. Only a dumbass would think that govts could even define what is 'moral'. much less make constitutional laws that criminalize 'sinful' acts..
tpaine posted on 2018-01-25 19:17:51 Reply Private Reply
#46: A K A Stone To: tpaine (#45)
A K A Stone posted on 2018-01-25 19:23:39 Reply Private Reply
#47: A K A Stone To: tpaine (#45)
You speak out of both sides of ylur ass. Stealing is immoral and it is illegal everywhere. You lose. Checkmate.
A K A Stone posted on 2018-01-25 19:24:48 Reply Private Reply
#48: tpaine To: A K A Stone (#47)
Yo boss, --- I loose.
Maybe I'll celebrate your triumph by joining you in a cocktail, seeing it's almost 5pm here..
When did you get started, at lunch?
tpaine posted on 2018-01-25 19:50:54 Reply Private Reply
#49: Vicomte13 To: misterwhite (#33)
Now what?
Well, as always, there being no solution to an either/or problem, the disagreement is resolved by power.
Vicomte13 posted on 2018-01-26 06:22:20 Reply Private Reply
#50: misterwhite To: Vicomte13 (#49)
And that would be the power of the majority of people acting through their elected representatives.
misterwhite posted on 2018-01-26 10:10:11 Reply Private Reply
#51: misterwhite To: Tooconservative (#39)
Yes. And today we might label some as liberals and some as conservatives, yet you you you chose to label all of them "Libertarians With Exceptions".
Why not "Conservatives With Exceptions"?
misterwhite posted on 2018-01-26 10:14:52 Reply Private Reply
#52: A K A Stone To: tpaine (#48)
Of course you lose. You made a stupid statement that was easily demonstrated as false.
If getting some cocktails makes you feel better then go ahead get drunk if that is your thing.
A K A Stone posted on 2018-01-26 10:15:51 Reply Private Reply
#53: Tooconservative To: misterwhite (#51)
The conservatives of the era were all royalist Tories. And back then, some of them actually would pack up and move out of the country. Many moved to Toronto. Which we then burned (retaliation for burning D.C.).
The Founders were the biggest radicals of their era. Only the later French Revolution (Reign of Terror) was more radical until you get to the many revolutions around 1850 when the power of Europe's monarchs were finally broken, in large part because of America's ongoing "bad example".
The Founders were not conservatives. They were fairly radical Englishmen living in English colonies.
Tooconservative posted on 2018-01-26 10:22:26 Reply Private Reply
#54: misterwhite To: Tooconservative (#53)
Got it. The conservatives were a monolithic group. Probably the liberals, too.
Only Libertarians can claim not to be monolithic.
misterwhite posted on 2018-01-26 11:05:23 Reply Private Reply
#55: Tooconservative To: misterwhite (#54)
None of them are actually monolithic but some come closer. Republicans in Blue states are nowhere close to conservatives from the Bible Belt. Similarly, the liberal-Left Xlinton faction of the Dems (probably still a voting majority) is much more numerous than the noisier Bernie Bros Bolsheviki.
And libertarians are a mixed bag too. So were the Founders.
That was kinda the point I was making.
I'll repeat my point: the Founders were far and away the most radical political thinkers of the entire Enlightenment era. And their republic endures today, well over two centuries later, something you can't say for other democratic countries (excepting Britain). The others all fell into dictatorship or conquest at one point or another or they are far younger governments than ours is. Our relative isolation helped but our political system, despite its many flaws, is more resilient than the parliamentary democracies.
Tooconservative posted on 2018-01-26 11:49:42 Reply Private Reply
#56: Vicomte13 To: misterwhite (#50)
Rarely. Generally it's settled by money power, except in revolutionary circumstances.
Vicomte13 posted on 2018-01-26 12:00:36 Reply Private Reply