BLUF
On the last day of the Constitutional Conventional, Benjamin Franklin was asked by a woman outside Independence Hall what kind of government had been framed by the Philadelphia Convention. His response—“A republic, if you can keep it”—summed up perfectly the challenge given to every generation of Americans since the founding era.
Tragically, it now seems clear that we did not keep what the founders gave us. But that’s on us, not them.
The Laissez-Faire Constitution.
In 1787, America’s founding fathers created the world’s first laissez-faire constitution or what I call a constitution of liberty.
The idea of a laissez-faire constitution may strike you as odd. We typically associate the term “laissez-faire” with economics, and, more specifically, with capitalism.
What, then, do I mean by these terms? What is a laissez-faire constitution or a constitution of liberty? And what’s the relationship between a laissez-faire constitution and laissez-faire capitalism?
To answer these questions, let us define our terms. Laissez-faire translated from its most common eighteenth-century French usage literally means “let it be,” “let it go,” or “leave it alone.” In the Anglo-American world, the phrase is more commonly translated as “hands off.”
But ask yourself this question: whose hands are we talking about, and who are they to be kept off? In other words, who is to let things alone, and who is to be left alone?
The answer to the first question is government, and the answer to the second is the individuals who compose civil society. Laissez-faire, then, means that government is to keep its hands off the people and leave them free to pursue their material and spiritual values.
This means that laissez-faire capitalism should be viewed less as an economic system and more as a political system. We should speak less about laissez-faire capitalism and more about laissez-faire government, although the two are clearly related. In fact, laissez-faire capitalism rightly understood means laissez-faire government.
The sole purpose of laissez-faire government is to protect the individual’s rights to life, liberty, property, and the pursuit of happiness of all citizens. A laissez-faire government is one that maintains a framework of laws that prohibits predatory force and fraud and refrains from intervening in the operation of markets, which means it must not regulate or subsidize market processes (e.g., division of labor, prices, competition, and profit).
Laissez-faire capitalism is properly seen, then, as a political system that separates economy and State, where property is privately owned, contracts are upheld as inviolable, and individuals are free to produce, trade, and compete. As a result, individuals must be left free from government coercion to create, acquire, possess, use, trade, and dispose of their property, and they must be free to form contracts for the exchange of ideas, goods, and services.
A laissez-faire government does not and will not direct private enterprise toward ends desired by government officials. Instead, a properly constructed government for a free society provides a minimal structure of rights-protecting laws, the purpose of which is to expand spheres of individual freedom and action. James Wilson made the point this way in his Lectures on Law:
By some politicians, society has been considered as only the scaffolding of government; very improperly, in my judgment. In the just order of things, government is the scaffolding of society: and if society could be built and kept entire without government, the scaffolding might be thrown down, without the least inconvenience or cause of regret.
Government rightly understood, then, exists for the sake of civil society and not the other way ‘round. A laissez-faire government is one that provides the scaffolding necessary to keep civil society civil.
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