Charles Kesler in Imprimis.
Accordingly, my fourth proposition is that limited government must be constitutional government. Government must be limited to its proper ends, but its means must be capable of effecting those ends. To resolve these goals was the great achievement of the political science of the Founding Fathers, whose emblem was the Constitution; or to be more precise, the Constitution as seen in the light of the principles of the Declaration of Independence.
Proposition five: Limited government, in the sense of constitutional government, is opposed to the political assumptions of the modern state, which arose after the New Deal. Those assumptions came largely from the political science of the Progressive era, whose proponents argued that the Founders’ limited government was an 18th century nostrum that was powerless to solve 20th century problems. From this point of view, natural rights were an immature form of genuine right, enshrining egoism and individualism that might have been necessary for frontier farmers but made no sense in an interdependent, industrial society. The Progressives believed that freedom did not come from nature or God, but instead is a product of the state and is realized only in the modern state. Far from being the people’s servant and, therefore, a possible threat to freedom—because servants can be unfaithful—the state is the full ethical expression of a people. The state is the people and the people are the state. This strange use of the term represents the Progressive attempt to translate the German concept of der Staat into American politics. America did not have a state theory of this sort until the Progressive era. Conservative and most libertarian anti-statism arose in opposition to this innovation; but too often, in recent years, hostility to der Staat has been confused with opposition to government per se.
To put the difference more plainly, consider Woodrow Wilson’s insistence that “living political constitutions must be Darwinian in structure and in practice.” In short, it is not the limited Constitution of the Founders, but the living Constitution, which is the ideal of Progressives and of modern liberal theory and practice. A fixed or limited Constitution would make sense if human rights are fixed and unchanging, as the Declaration affirms. But if human rights are essentially historical or evolutionary, then we should want a Constitution that is free to adapt and evolve along with them. In theory, then, no a priori limitations on government power—whether property rights, speech rights, or even religious freedom—can be allowed to impinge on government’s ability to bring about historical liberation. The old or natural rights have to be sacrificed in order to achieve the new rights of self-fulfillment. Thus for the Progressives—as for Barack Obama and many liberals today—political tyranny is no longer the ever-present threat that it was considered to be by James Madison or Alexander Hamilton. In liberal eyes, the real political threat is not tyrannical government or even the tyranny of the majority, but the well-connected capitalists, the “economic royalists” hiding behind the façade of democracy, who manipulate things to their advantage. Liberals ever since the New Deal have argued that limited government must become unlimited, in order to prevent the few from becoming tyrannical.
A new theory of the Constitution corresponded to this new theory of rights. FDR put it memorably in his 1932 Commonwealth Club Address: Government is a contract under which “rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights.” According to this view, we give the rulers power and the rulers give us rights. In other words, rights are no longer natural or God-given, but emerge from a bargain struck with the government. And it is up to liberal statesmen or leaders to keep the bargain current, redefining rights constantly—adding new rights and subtracting some of the old ones—in order to keep the living Constitution in tune with the times. Entitlement rights—rights created and funded by government—replace natural rights. Given this new relationship of people and government, we don’t need to keep a jealous eye on government anymore, because the more power we give it, the more rights and benefits it gives us back—Social Security, Medicare, prescription drug benefits, unemployment insurance, and on and on.