Editor’s Note: This is an excerpt from a longer essay, with the same title, by Mr. McConnell. It is published by the Hoover Institution as part of a new initiative, "Socialism and Free-Market Capitalism: The Human Prosperity Project."
You say you'll change the constitution
Well, you know
We all want to change your head. . .
But if you go carrying pictures of chairman Mao
You ain't going to make it with anyone anyhow . . .
— “Revolution,” the Beatles (1968)
Justice Oliver Wendell Holmes famously described the US Constitution as “made for people of fundamentally differing views.” (Lochner v. New York dissent) By that, he meant that the Constitution does not commit the nation to any particular ideological or economic theory, including laissez-faire capitalism. Instead it leaves decisions about national policy to the democratic process, subject to the constraints of the Bill of Rights. Within the range of ordinary politics, Holmes was correct: Americans can decide, through their elected representatives, to have high taxes or low, generous welfare payments or a basic social safety net, government-owned enterprises or privatization, heavy-handed or light-touch regulation. That is the difference between democratic socialism and a largely free-enterprise economy. As practiced (more in the past than today) in the Scandinavian countries, “democratic socialism” has meant a capitalist, private-profit driven market economy, with high rates of taxation and economic redistribution. In its post-war British incarnation, “democratic socialism” added government ownership of major industry. (This was abandoned mostly for the pragmatic reason that government is not a good manager of economic enterprise.) None of this is forbidden by the US Constitution. Congress can set taxes as high as it wishes and can devote the proceeds to redistributionist policies. Governments can, if they wish, use the power of eminent domain to seize ownership of the means of production (provided that owners are compensated for the value of property taken), and they have owned and run large enterprises like the Tennessee Valley Authority. Regulation of some sectors of the economy can be so extensive that the companies are rendered “private” in name only. Most policies that go by the label “democratic socialism” are thus permitted under the Constitution, so long as these objectives are pursued peacefully, democratically, and in accordance with law.
But the Constitution is not completely indifferent to the nature of the socioeconomic regime. It does not commit the nation to any one set of policies, but it stands as a barrier to revolutionary absolutism; it rests on a philosophy of individual rights that is most consistent with liberal democracy and private property; and it contains a number of safeguards designed to foster a free and prosperous economy.
The Beatles were right: a socialist revolution inspired by “pictures of Chairman Mao” (or tee-shirts of Che Guevara) would indeed have to “change the constitution.” Revolutions entail violence undisciplined by law or orderly process; the Constitution requires due process of law, enshrines the right of habeas corpus, forbids arbitrary confinement, and interposes a jury of one’s peers between the accused and his accusers. Revolutions displace elected government with self-appointed leaders purporting to speak in the name of the People; the Constitution reserves governing power to republican institutions, with regular elections at specified intervals. (No, Mr. Trump cannot delay the presidential election, whatever nonsense he may tweet.) Revolutions seize control over the media for dissemination of news and opinion; the First Amendment insists that these be under decentralized private control, allowing dissenting voices to be heard—even voices deemed by the dominant group to be retrograde or pernicious. A socialist revolution along Marxist or Maoist lines would bring an end to private property and the market ordering of society through private contract, while the Constitution, by contrast, explicitly protects private property and the obligation of contract.
Of course, this presupposes that at a time of revolutionary upheaval the guardrails of the Constitution would be respected. That is far from certain. It might even seem improbable; revolutionaries do not typically respect the niceties of written constitutions. But the structural features of the Constitution—its division of power among a large number of independently chosen and controlled entities—is designed to make it as difficult as possible for mass movements to impose their will on the nation as a whole, without the time for reflection and resistance. Power is divided among three branches at the national level, fifty different states, and thousands of municipalities, with coercive authority further divided among police, militia, and military (a point that has come to public attention recently, in connection with the disputed use of federal troops and agents to enforce order in the cities over the objection of local officials). A faction pushing radical change cannot simply seize the levers of power at one central location; it has to build support in diverse places like California and Texas, Chicago and Pensacola. Although the “influence of factious leaders may kindle a flame within their particular States,” James Madison wrote, the diffusion of political authority will make them “unable to spread a general conflagration through the other States” (Federalist 10).
Even apart from actual revolution, the checks and balances built into American government make it difficult to anyone, whatever their ideology, to achieve rapid and transformative change. Both Barack Obama and Donald Trump swept into office with the support of both Houses of Congress (Obama with a filibuster-proof majority in the Senate), but both presidents committed the political sin of overreach, both had their agendas delayed by a judiciary that was largely named by the other party, and both lost their majority in the House of Representatives in just two years. Our Constitution allows democratic change, but the checks and balances in the system are designed to slow things down, to give the American people time to reflect on whether the change being pressed by their representatives is really desirable. The Founders attempted to mold public democratic institutions in such a way as to protect “the rights of the minor party” from the “superior force of an interested and overbearing majority” (Federalist 10). The constitutional system might thus be described as “small-c conservative”: not right-wing, but resistant to rapid and convulsive change from either the right or the left.
The Constitution’s principal mechanism for taming and controlling the power of majority factions was what today we would call diversity, and the Founders called “multiplicity of factions.” In a relatively homogeneous district or jurisdiction, a particular group—whether ideological, economic, religious, racial, or based on some other common characteristic—can dominate and sweep all before it, without need for compromise or for consideration of the concerns and interests of dissenters. When the majority is “united by a common interest, the rights of the minority will be insecure” (Federalist 51). The all-white districts of the Jim Crow South provide a familiar historical example: political leaders in such districts had no political need to heed the interests of the African American minority disadvantaged by their policies. But the point can be generalized. Modern social science research has confirmed Madison’s intuition that the presence of dissenting voices within deliberative bodies has the effect of reducing polarization and moderating their views. Diversity of ideas thus mitigates the dangers of ideological faction. That is why multimember legislative bodies, elected from a variety of heterogeneous districts, are less susceptible to extremes than social movements or the executive branch, and why the framers intended Congress to be the central institution for national policy making.
To be sure, this system slows the pace of change, but the Founders regarded this as a plus. It is not possible for people to order their affairs and plan for the future without a certain confidence that the rules will not change in the middle of the game. As Madison explained in Federalist 62, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be . . . repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.” Not only does uncertainty about the law “[poison] the blessings of liberty itself,” but it dampens the incentive for socially productive economic endeavor. “What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed?” Stability and predictability of law is essential to “the success or profit” of “every useful undertaking.”
Although democratic socialism is not “unconstitutional” if achieved through democratic means, the Constitution has a certain philosophical content, which impresses itself subtly and powerfully on the national ethos. The Constitution was written against a backdrop of natural rights theory, in which the predominant purpose of government was to protect the life, liberty, and property of each person. The Founders understood that government of this sort would not only “secure the blessings of liberty” but also establish the preconditions for long-lasting national prosperity. The Constitution did not bind future generations to any particular ideology, but it did presuppose the importance of individual rights, and it laid the groundwork for the most productive economy the world has ever seen.
The writings of English philosopher John Locke are a good place to start. In his Second Treatise on Government (1689), Locke reasoned that by nature, all human beings are “free, equal, and independent.” This freedom, equality, and independence is the foundation of the rights to personal security and property. As Locke put the point: “Every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.”
But while all people have rightful ownership of themselves and the products of their labors, those rights are insecure in the absence of civil society and the protections it can confer. You might spend years cultivating a farm or building a store, only to have everything taken away or destroyed by brigands, mobs, or warlords. Without civil society and the rule of law, no one is safe. Locke called this condition of lawlessness the “state of nature.” This term causes some to think that he was speaking of an imaginary period of human history, before recorded history. But the state of nature is not located in a mythical past. It is an ever-present possibility when civil authority breaks down. Think of Iraq after the fall of Saddam Hussein, of Bosnia or Northern Ireland during their troubles, of gangland Chicago, or even of American cities during times of violent unrest. Like weeds in an untended garden, the state of nature breaks out afresh whenever the forces of civil society weaken or retreat.
It bears emphasis that the biggest victims of lawlessness are not the rich and powerful, who can find or buy alternative private forms of protection, but the weak and vulnerable, who cannot. In our society, the victims are all too often minority or recent immigrant communities. The (presumably temporary) retreat of the police from active enforcement of the law in many of our cities leaves these vulnerable people subject to the highest death tolls and destruction of property.
Not only do people in the state of nature live in fear for their personal security, but this insecurity of rights removes the incentive to invest labor and resources in long-term projects of wealth creation. If the fruits of their labors are insecure, no one will make the short-term sacrifice that is necessary to create jobs and prosperity for all. People might wish to use their brains, their muscles, and their savings to cultivate farms, start shops, and create wealth, but who would do so if the profits may be smashed, stolen, or regulated away? The rule of law is a key ingredient of prosperity as well as of freedom and security.
As Locke and the American Founders understood, government itself can be as dangerous to the rule of law as private wrongdoers and can be just as much a threat to property and personal security. The American Revolution was sparked by a British soldier shooting an innocent Bostonian during a protest. An uncontrolled government is not much less dangerous than a mob and may be more so. That is why the recent police brutality and misconduct connected with the killing of George Floyd tapped so deeply into the shared American consciousness. Persons armed with the coercive power of the state must be bound by the rule of law, no less than private malefactors. The rule of law must prevail in police stations as well as the streets. As James Madison wrote, “In framing a government which is to be administered by men over men, . . . you must first enable the government to control the governed; and in the next place to oblige it to control itself” (Federalist 51).
