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.
