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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.

The single greatest innovation of America’s revolutionary generation was to invent the idea of a written constitution as fundamental law. (This is the subject of my next book.) They did not, of course, call it a laissez-faire constitution but that was, in effect, what it was.

So, what do I mean by a laissez-faire constitution? To quote Thomas Paine in Rights of Man, “it will be first necessary to define what is meant by a constitution,” and Paine defined a constitution in the following terms:

A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. . . . A constitution, therefore, is to a government, what the laws made afterwards by that government are to a court of judicature.

By a constitution I mean a written document that establishes, defines, and limits the power of the government it creates. A laissez-faire constitution is one that limits its powers solely to the protection of individual rights. It creates spheres of liberty between the government and the individual. The constitution of liberty is defined by a wide berth of separation between the power and activities of the government on the one hand, and the people’s economic, religious, educational, and cultural freedoms on the other.

This essay examines the constitution created by the framers and ratifiers of the U. S. Constitution as a laissez-faire constitution. The Constitution and its Bill of Rights provide the principles and structures necessary to establish a private property order and laissez-faire capitalism.

The general purpose of America’s laissez-faire constitution was twofold: first, to protect the rights of individuals (particularly the right to property), and second, to restrain the use of illegitimate power.

The rights of individuals are best protected from government predation by creating a constitution that limits the powers of government to protecting certain liberty-enhancing spheres. That’s what the U.S. Constitution does, so let us examine how it does so.

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The Moral Foundations of the Laissez-Faire Constitution

At the heart of any free society is the doctrine of natural or individual rights, which means the unalienable rights to life, liberty, property, and the pursuit of happiness as explicated in the Declaration of Independence. The only proper role for government in a society built on classical-liberal principles is to protect those rights as sacrosanct. Thus, the Declaration’s third self-evident truth affirms that “Governments are instituted among Men” to secure their unalienable rights. And that’s it—nothing else.

The purpose of government for the founding generation was neither to make men good nor equal. The purpose was to set them free.

For America’s deepest-thinking revolutionaries, the “rights of nature” were moral principles and legal rules that serve three primary functions:  first, they define the social conditions necessary for man’s well-being (i.e., freedom, peace, and order); second, they recognize and protect spheres of freedom for individuals interacting with one another in society (i.e., by creating moral-legal metes and bounds); and, third, they serve as a social ordering mechanism (i.e., by an invisible hand that channels human action in individually and socially useful ways). Rights, in other words, serve as a kind of social lubricant that greases the wheels of human interaction.

America’s founders also understood that the “natural” rights of individuals can only be violated by the predatory actions of other men or by government. More specifically, they knew that man’s rights can only be violated by physical compulsion, theft, fraud, etc. The legal recognition, implementation, and enforcement of “rights” provides a mechanism by which a civil society distinguishes mine from thine, including the liberty to think and act.

In sum, the concept “rights” means freedom from predatory force or fraud, and it means the freedom to act to produce, acquire, possess, use, and trade property. Man’s right (i.e., that which is the right course of action to sustain his life and achieve his most important goods) necessitates freedom (i.e., the power to act free from the physical compulsion of other men). In other words, freedom and rights are virtually synonymous in the same way that force and rights are antonymous. Thomas Jefferson made the point this way: “Liberty is unobstructed action according to our will within the limits drawn us by the equal rights of others.”

Built into the spirit of the U.S. Constitution are the moral principles of the Declaration of Independence. The Constitution’s Preamble provides the link between the Declaration’s moral principles and the structures and powers of the government created by the Constitution. The Preamble established in broad terms the new government’s moral ends, which are to “establish Justice,” to “secure the Blessings of Liberty to ourselves and our Posterity,” and to “promote the General Welfare,” which was meant to encompass justice and liberty.

The Problem of Power

Government is defined by power and power means force, the kind of force that can bend the wills of men, inflict pain, and, ultimately, cause death. Governments have a monopoly on the use of physical force in the form of batons, guns, bombs, and prisons. Government must, by definition, have power, but power is inherently problematic: it is often restless, grasping, and malignant.

As James Madison noted in the 48^th essay of The Federalist, “power is of an encroaching nature” and “it ought to be effectually restrained from passing the limits assigned to it.” The founders understood implicitly that “power tends to corrupt and absolute power corrupts absolutely” long before Lord Acton first uttered these famous words. In the words of Benjamin Rush: “Absolute power should never be trusted to man.  It has perverted the wisest heads, and corrupted the best hearts in the world.  I should be afraid to commit my property, liberty and life to a body of angels for one whole year.” Thomas Jefferson feared that all politicians—including America’s revolutionary republicans—would “become wolves,” which seemed to the Virginian to be a “law of our general nature.” Jefferson also noted that it is sometimes “said that man cannot be trusted with the government of himself,” and if that were true, he continued, then it naturally followed that he could not “be trusted with the government of others[.]”

Government power is, however, paradoxical: on the one hand, it is necessary to protect the rights of individuals, but on the other hand it is all-too-frequently subject to abuse. The framers’ challenge therefore was to create a national government that had enough power to carry out its legitimate functions (e.g., providing peace, safety, and justice), but one that did not have so much power that it could abuse its own citizens. The boundary between legitimate and illegitimate power is thin, weak, and porous.

The problem of power was in the forefront of the founders’ thoughts as they conceived, constructed, and defended their national constitution. The founders constitutionalized power in four ways: first, they constrained the general powers of the federal government by limiting its functions; second, they separated and balanced the federal government’s powers; third, they clearly demarcated the powers between the state and federal governments; and fourth, they added a bill of rights to their laissez-faire constitution.

These four pillars of a laissez-faire constitution limit the coercive power of government, so that individuals can be free to pursue their material and spiritual wellbeing. Let’s consider each in turn.

Pillar One: The Objects of Government

The Constitution’s Preamble explicates the national government’s core political functions, namely, to “insure Domestic tranquility” and “provide for the common defense.” These are remarkably delimited functions.

One of clearest formulations of the powers and functions of America’s laissez-faire constitution is to be found, ironically enough, in Alexander Hamilton’s 23^rd Federalist essay. The New Yorker identified the general powers of the new federal government as few and far between. According to Hamilton, the purposes and functions of the new national government were fourfold: 1) “the common defense of the members”; 2) “the preservation of the public peace as well against internal convulsions as external attacks”; 3) “the regulation of commerce with other nations and between the States”; and 4) “the superintendence of our intercourse, political and commercial, with foreign countries.” That’s it! These are remarkably limited functions and powers.

The first, second, and fourth purposes of the federal government created by the Constitution envision a government of clearly limited powers. By Hamilton’s account, this new government would have a military for national defense, courts and police to protect the rights of individuals and preserve domestic tranquility, and the powers of diplomacy. Even the third function, the so-called “regulation of commerce,” was meant to promote free trade and not restrict it.

Amazingly, at least compared to today’s Leviathan State, the first executive cabinet under the Washington administration consisted of only four departments: war, navy, state, and treasury.  These remarkably limited powers and structures remained virtually unchanged for over 50 years.

Among its various objects, the U.S. Constitution was created to safeguard the nation’s free economic market from all but the most necessary regulations at either the state or federal levels. This meant most especially the protection of property rights, which was the cornerstone of the founding generations’ definition of justice.

At the Philadelphia convention, Gouverneur Morris from Pennsylvania defended the right to private property in no uncertain terms. He there said: “Life and liberty are generally said to be of more value, than property. An accurate view of the matter would nevertheless prove that property was the main object of Society.”

In defending the Constitution from its Anti-Federalist critics, James Madison famously argued in the 10^th essay of The Federalist, “the first object of government” is the protection of “the diversity in the faculties of men from which the rights of property originate.” In short, the basic right to property means the right to acquire property as an extension and requirement of human nature. It is not so much the possession of property that is to be protected by government, as it is the fruits of the inventive and productive faculty, or the right to possess what one has created. What is protected, in other words, is the incentive to think, work, acquire, and trade.

The right to property also means the right to trade it. In 1789, Madison told the First Congress to sit under the new Constitution that property rights, commerce, and the natural system of liberty liberated individuals to use their mental and physical labor most efficiently to the most productive ends. In other words, Madison was promoting a laissez-faire policy that separated economic production and trade from government direction. Channeling Adam Smith, Madison said:

I own myself the friend to a very free system of commerce, and hold it as a truth, that commercial shackles are generally unjust, oppressive and impolitic—it is also a truth, that if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.

A government policy that honors free commerce and trade, he continued, is one where “all are benefited by exchange, and the less this exchange is cramped by Government, the greater are the proportions of benefit to each.”

The framers of the U.S. Constitution gave to the federal government only limited powers over economic activities, and they denied to the state governments a whole raft of economic powers. The founding generation understood all-too-well that command-and-control economies are immoral and do not work. In his Autobiography, Thomas Jefferson noted that were men “directed from Washington when to sow and when to reap,” they “should soon want bread.”

Pillar 2: Separation of Powers

The second major way in which the founders’ laissez-faire constitution tames and controls power is through the principle, separation of powers.

In the 47^th Federalist essay, James Madison noted that for the “enlightened patrons of liberty” no “political truth” was stamped with greater value than the necessity of controlling the growth of political power via the principle of separation of powers. This truth was grounded, he observed, on a simple political fact: “The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”

The entire founding generation understood that the concentration of power inevitably leads to tyranny because monopolistic power will always be abused. Power separated is power less likely to be used oppressively. The hope was that by separating power into three different organs of government, no one branch could accumulate enough power to overwhelm the other branches of government and to oppress the people.

Separation of powers was universally acclaimed by the founding generation as a core tenet of what they called the new science of politics, and it was fully incorporated into the structure of the federal Constitution. The first three articles of the Constitution identify, define, and separate the three necessary and naturally-occurring powers—legislative, executive, and judicial—associated with a natural-rights government.

Article I highlights the forms and formalities of the Legislative branch (i.e., Congress). Article II outlines the forms and formalities of the Executive Branch (i.e., the President). And Article III details the forms and formalities of the Judicial Branch (i.e., the Supreme Court).

The great genius of America’s constitution of liberty is not simply that it separates these distinct powers. The framers were not so naïve to think that by simply writing the separation of powers into the Constitution that its powers would magically stay separate. “Parchment barriers,” Madison wrote in the 48^th Federalist essay, were insufficient to prevent one branch of government from usurping the powers of another. Something more was needed. And that something was to aid the separation of powers by mixing and balancing those powers. The founders’ laissez-faire Constitution inhibits the growth of centralizing power by giving to each branch of government overlapping and shared powers with the others.

For instance, the executive power is given a partial veto over legislation, and the President is also empowered to propose legislation. The president is the commander-in-chief but only the house of representatives has the power to declare war. The principle of judicial review gives the Supreme Court the authority to review the constitutionality of laws, and they have broad discretion in interpreting and applying Congress’s laws. The president appoints members of the Supreme Court with the advice and consent of the senate. Most importantly, Congress, which exercises the legislative power (the most naturally dangerous power in a republic), is itself divided into two distinct houses, the House of Representatives and the Senate, each of which represents different and sometimes competing socio-economic and regional interests. The House (which is a much larger body with a shorter term of office) is a more democratic body that is meant to reflect the passions, opinions, and interests of the people, while the Senate (which is a much smaller body with longer terms of office) is a more aristocratic body that is meant to reflect greater experience, knowledge, and wisdom.

The deeper, philosophic meaning of this mixing, balancing, and checking of power was famously described by James Madison in Federalist 51:

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

The genius of the American Constitution is to inoculate itself from the twin problem of ambition and power by injecting into the body politic a dose of ambition or self-interest, so that each branch of government has the incentive to defend itself from the predatory ambition of another branch.

Pillar 3: Division of Powers

The third major way in which the founders’ constitution of liberty tames and controls power is by dividing powers between the national and state governments, otherwise known as the principle of federalism. The goal of federalism is to promote local self-government and to prevent the central authority from acquiring too much power and swallowing up the small and weaker political units.

America’s laissez-faire constitution created a national government with strong but limited powers that reserved to the states (and the people) their own powers to remain free and independent political entities. In other words, the Constitution constitutionalizes decentralization by devolving some functions and powers to state and local governments, thereby helping to limit the size and power of the central government and expanding competing spheres of liberty.

The government in the District of Columbia assumes those powers of national concern (e.g., defense and diplomatic functions), and the 50 state governments assume those powers that most directly affect the citizens (e.g., various police powers).

In Federalist 39, James Madison described the interlocking system of governments created by the Constitution as “partly national and partly federal,” and in Federalist 45 he summed up how the principle of federalism is expressed in the Constitution:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

The division of powers between the national and state governments is laid out in Article I, sections 8, 9, and 10. Article I, section 8 details the powers given to the national Congress; section 9 lists the powers denied to Congress; and section 10 lists the powers denied to the state governments.

The powers given to Congress in Article I, section 8 are remarkably limited. Congress is there authorized to “lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States.” The power to raise the revenue necessary to carry out its legitimate functions (e.g., national defense) is natural and necessary to the operation of government.

Section 8 also authorizes the Congress to borrow money, regulate foreign and interstate commerce, establish uniform rules of naturalization, coin money and punish counterfeiting, establish post offices and post roads, protect intellectual property, establish federal courts, declare war, raise various defensive military forces to defend the nation from external force and internal insurrection, and do all things “necessary and proper” to carry out these functions.

Again, these powers mostly seem to be in accord with the legitimate powers of government for a free society, although we might debate whether a government-run postal service and its roads are in accord with a natural-rights republic. The most questionable of these powers is the “commerce clause,” which gave Congress the power to “regulate” internal and external commerce. Obviously, the most important word to understand is “regulate,” by which the framers meant the authority to eliminate trade barriers and to create a free-trade zone between the states.

The miserly powers given to Congress in section 8 are further reduced by Article I, section 9, which sets clear limits on what Congress may do. Among the powers denied to Congress include those that would violate the ancient rights and liberties transplanted in America from the British common law, such as the privilege of habeas corpus, which is writ requiring a person under arrest to be brought before judge in a timely fashion. Furthermore, Congress may not issue bills of attainder, which are legislative acts designed to punish individuals without a jury trial. Nor can Congress pass ex post facto laws, which are retroactive laws that impose criminal penalties for acts that were not illegal when they were performed. The rule of law, in other words, provides the structure or what James Wilson called the “scaffolding” for America’s constitutional republic.

Section 9 also forbids Congress from levying direct taxes that are not proportionate to population; to tax exports; or to favor the ports or shipping of one state over those of another. Forbidding Congress to tax exports is clearly a limitation on the government’s ability to violate property rights and restrict trade, and forbidding Congress to grant special favors and monopolies to political entrepreneurs also promotes competition and eliminates barriers to entry.

Article I, section 10 completes the Constitution’s institutionalization of federalism in the American political system. Section 10 provides a list of the powers denied to state governments, including the authority to coin money, issue paper money and require as a substitute for gold or silver in the payment of debts; pass bills of attainder or ex post facto laws; or interfere with contractual obligations. Finally, state legislatures may not tax exports or imports, except to support absolutely necessary inspection costs.

A primary purpose of section 10 was to curtail the powers of the states to interfere in economic production and trade, particularly as it relates to property rights and contractual obligations.

As we saw in “The Birth of the Laissez-Faire Constitution,” several states during the 1780s had violated the property rights and contractual obligations of their own citizens by passing “stay laws,” which extended the time in which debtors were required to repay their arrears, and “installment laws,” which allowed debtors to pay their arrears in installments after the original date established by their contract. Such laws violated both property rights and the moral-legal obligation to fulfill one’s contracts. They were, in effect, indirect forms of wealth redistribution.

Freedom of exchange requires the use of legally enforceable contracts, which are voluntary agreements to exchange goods and services. Contracts are a manifestation of the right to private property. They represent promises between two or more parties that can be satisfied in the present or in the future. Broken contracts must be adjudicated by a neutral judge, which is a core function of a laissez-faire government. A free and civil society is not possible without enforceable contracts.

Pillar 4: The Bill of Rights

The Bill of Rights was literally the capstone to America’s laissez-faire constitution. The Constitution’s first 10 amendments provide additional checks on government power, and they protect the rights of individuals—including, if not most especially, the right to property—in several ways. The Bill of Rights was designed to elevate individual freedom and deflate political power. The first ten amendments create free spaces between what government may not do and what individual citizens may do.

The Constitution’s first ten amendments provide individuals with various protections from the use and abuse of government power (e.g., from the police, executive agencies, and Congress). The Bill of Rights is divided into two kinds of protections: positive and procedural. The positive or substantive rights recognized either directly or indirectly in the first ten amendments include man’s natural rights to life, liberty, and property and their various manifestations as civil rights and liberties. The procedural or civil rights proscribe the legal forms and formalities by which government power is to be exercised, particularly with regard to criminal procedure.

Let’s quickly survey how the Constitution’s Bill of Rights protects American citizens from arbitrary or tyrannical government.

• The First Amendment forbids Congress from creating an established national religion, and it guarantees the right to free religious belief and practice. It also forbids Congress from making laws that would violate the freedom of speech, press, and assembly. The 1^st Amendment, more than all the others, goes the furthest in limiting what government can do and in protecting man’s ability to think, communicate, and associate. More particularly, the most important purpose of the freedoms of speech, press, and assembly is to afford citizens a space in which to criticize government and to hold government officials accountable for their actions.
• The Second Amendment forbids the federal government from infringing the people’s right to keep and bear arms, which is a recognition of their fundamental right to defend their freedom and property from government abuse foreign or domestic. A disarmed populace cannot easily resist tyrannical government.
• The Third Amendment forbids government from the quartering of soldiers in any man’s house without the owner’s consent. Private property and privacy elevated by the 3^rd Amendment over the needs or demands of government officials.
• The Fourth Amendment forbids government officials from pursuing unreasonable searches and seizures of private property, particularly of a man’s home or business. The 4^th Amendment is built on the traditional common law principle dating back to at least the sixteenth century that a man’s house is his castle. A man’s home is his private space and sanctuary that is off limits to government officials without a legally authorized search warrant.
• The Sixth Amendment institutionalizes the rule of law in America’s criminal justice system by giving to all individuals accused by the government of a crime the guarantee of various due process rights, such as the guarantee of a speedy jury trial in criminal cases, the right to be informed of the “nature and cause of the accusation” as well as the right to confront witnesses and to have legal defense. The purpose of these procedures is to limit the arbitrary abuse of government power.
• The Seventh Amendment forbids the federal government from denying individuals the right to jury trial in civil suits at common law cases (exceeding twenty dollars). Again, the purpose of this amendment was to defang the government’s potential abuse of its power.
• The Eighth Amendment forbids the federal government from requiring excessive bails and fines and from inflicting punishments that are abusive or disproportionate to the crime. The purpose of this amendment is to control and moderate the tendency of governments to become arbitrary, vindictive, repressive, abusive, and tyrannical.
• The Ninth Amendment guarantees to the people those rights and liberties not explicitly mentioned in the Constitution or the Bill of Rights. In other words, the 9^th Amendment protects a variety of civil rights and liberties that are not listed in the Constitution’s Bill of Rights. Rights and liberties involving, for instance, inheritance and marriage are reserved to the people though not formally enunciated in the Constitution or the Bill of Rights. The principle here is to prevent the government from assuming power over rights and liberties not mentioned.
• Lastly, the Tenth Amendment reserves to the states or the people those powers not specifically delegated to national government. The purpose of this amendment was to prevent the federal government from gradually expanding its powers while suppressing those of the states.

All these limitations on government power and guarantee of rights directly or indirectly involve the right to property, but it was the Fifth Amendment in particular that explicitly defended man’s natural rights from government abuse. (The 5^th Amendment also guarantees certain due process rights such as the use of grand juries for major crimes, the protection against double jeopardy, and immunity from being compelled to be a witness against one’s self.) The 5^th Amendment explicitly forbids the federal, state, and local governments from arbitrarily depriving any person of “life, liberty, or property, without due process of law.” Notice first that property is here treated as a fundamental or natural right, which means that it is to be treated as unalienable. There is, of course, a problematic caveat in the 5^th Amendment, which suggests that the government may violate an individual’s natural rights but only according to long established legal procedures. The framers’ intent, however, was to treat man’s individual natural rights as near or virtually absolute.

The 5^th Amendment also forbids the various levels of government in the United States from “taking” private property for public use without just compensation. Again, the right of private property is largely upheld as sacrosanct and only under exceptionally rare circumstances can the government take an individual’s property without their consent and only on the condition that the individual be justly compensated and made whole.

Conclusion

What, then, do we say about the framers’ Constitution?

The constitution of government ratified by “We the people” was, compared to the governments of the time and certainly compared to the U.S. government today, remarkably limited in its powers to force people to do the things the government wanted them to do.

America’s laissez-faire constitution created spheres of freedom unknown to any people anywhere or hitherto. It provided the legal and political framework for the development of the only moral and just social system known to man, namely, laissez-faire capitalism, and it liberated millions of people to express their initiative, productivity, and creativity.

To be clear, I am not suggesting the framers’ constitution of liberty was either theoretically or practically perfect or that it could not have been improved. In the “The Constitution’s Poison Pill,” I identified some of the Constitution’s major flaws (e.g., the “genera Welfare” clause). In the context of the time in which the Philadelphia Constitution was written, however, it was pathbreaking in its promotion of a free society.

Nowhere in Articles I or II of the Constitution is the federal government given for instance, the authority to create executive departments such as agriculture, education, energy, labor, health & human services, housing & urban development, interior, transportation, or hundreds of executive agencies such as the Federal Communications Commission, the National Endowment for the Arts, the U.S. Agency for Urban Development, the Administration on Aging, the Indian Arts & Crafts Board, the Food & Drug Administration, etc.

Nor does the founders’ constitution give government the power to redistribute wealth in the form of welfare, Medicare, Medicaid, student loans, social security, or government schools. Today’s welfare state is self-evidently immoral. These things only could have been introduced into our constitutional system because of the intellectual corruption and moral bankruptcy of “We the people.”

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.