The Purposeand Limits ofGovernment

byRoger Pilon

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is a series of distinguished essays on political economy and public policy. The Cato

Institute takes its name from an earlier series ofCato’s Letters, essays on political liberty writtenby John Trenchard and Thomas Gordon in the18th century, which were widely read in theAmerican colonies and played a major role inlaying the philosophical foundation for theAmerican Revolution.

Cato’s Letter #13The Purpose and Limits of Government

by Roger PilonCopyright © 1999 by the

Cato Institute

When America’s Founders declared thenation’s independence in 1776, they draft-

ed a document that has inspired countless mil-lions around the world ever since. For theDeclaration of Independence, reflecting “adecent Respect to the Opinions of Mankind,” setforth not only the causes that led us to dissolveour political ties but a moral vision that speaks tothe ages. In a few brief lines, penned near thestart of our struggle for independence, theFounders distilled their philosophy of govern-ment: individual liberty, defined by rights to life, liberty, and the pursuit of happiness, secured bya government instituted for that purpose withpowers grounded in the consent of the governed.

Yet around the world today we see govern-ments limiting liberty and trampling rights withimpunity, even where government purports to begrounded in consent — even in America.Indeed, it is not for nothing that the 20th century has been called the century of government; it is acentury that has given us leviathans the classicaltheorists could only imagine.1 Thus, the issuesAmerica’s Founders addressed in their seminaldocument are with us still. In fact, given thegrowing movement at century’s end to limit atlast the leviathans in our midst, one could saythat today the Founders’ concerns are especiallywith us.

As we revisit those concerns here, therefore,it is particularly important to learn from theexperience of the past two hundred years.Clearly, it was the plan of the Founders to limitgovernment, and to a substantial extent they suc-ceeded; for in the grand sweep of things,America has fared rather better than many othernations that sought also, in their own ways, tolimit their governments. But we would beremiss, at least, if we concluded from its relativesuccess that the Founders’ plan has worked as it

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Roger Pilon is vice president for legal affairs at the CatoInstitute where he holds the B. Kenneth Simon Chair inConstitutional Studies and is director of the Center forConstitutional Studies. This essay is reprinted, with permis-sion, from Limiting Leviathan, ed. Donald P. Racheter andRichard E. Wagner (Edward Elgar Publishing, Inc.:Cheltenham, UK, and Northampton, Mass., 1999).

was meant to work; for the most cursory readingof the writings of the day makes it plain that theFounders intended nothing like our presentAmerican leviathan. Indeed, many of the griev-ances the Declaration lists, which led to ourrevolt, are today the ordinary stuff of govern-ment in America. It would surely pain thosewho pledged their lives, their fortunes, and theirsacred honor to see how far we have come fromthose heady days of liberty.2

With the aid of experience, then, this essaywill examine the theory behind the Declaration’suniversal insights. Its focus will be on the moralorder the Declaration sketches and the place ofgovernment within that order. The concernthroughout will be with that most basic of politi-cal ideas — legitimacy. That, of course, was thefundamental concern of the Founders as well,

“The Declaration of Independence set fortha moral vision that speaks to the ages.”

which the Declaration captured in but two ele-gantly crafted lines: “. . . That to secure theseRights, Governments are instituted among Men,deriving their just Powers from the Consent ofthe Governed.” Reason and consent, the two tra-ditional sources of political legitimacy, are therejoined for “a candid World’’ to see. It is for ustoday to see more clearly how they go together tolimit government, lending it a measure of legiti-macy in the process. Once we do, and once wesee what has become of the Founders’ design, aswe will briefly at the end of this chapter, we willbe in a better position to breathe life back into theprinciples they so carefully crafted.3

THE DECLARATION OF INDEPENDENCEAs the Founders went about their task, theirimmediate aim, of course, was to justify theirdecision to declare independence. Toward thatend, they set forth a theory of legitimate govern-ment, then demonstrated how far English rulehad strayed from that ideal. In outlining theirtheory of legitimacy, however, they could hardly

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have begun with government, for the wholepoint was to show how government might ariselegitimately, not to assume its existence. Hadthey begun with government, they would havebegged the very question they set out to answer.

From the outset, therefore, the Founderswere engaged in a tradition of moral and politi-cal thought that has come to be called “state-of-nature theory.’’ Reasoning in that tradition

“Many of the grievances the Declarationlists, which led to our revolt, are today theordinary stuff of government in America.”

begins by assuming a theoretical “state ofnature,’’ a state of affairs we today call “civil soci-ety,’’ where society and social intercourse obtain,but questions about the justification and theproper role of government remain to beanswered. The Founders’ plan fell quite natural-ly, then, into two parts. First, they sketched themoral order in such a world, as derived fromprinciples of reason. Second, they drew forth thepolitical conclusions implied by that moral order.The first few lines in the Declaration’s seminalsection thus make no mention of government;that comes only after the moral order has beensketched.4

We Hold these Truths to be Self-evidentIt is important to appreciate, therefore, that theentire enterprise was rooted in reason. Thepropositions are asserted not simply as “truths’’but as “self-evident’’ truths — truths of reason.That placed us, right from the start, in the longtradition of natural law — more precisely, as wewill see in a moment, in the natural rights branchof that tradition. Standing in opposition to legalpositivism — which merely posits law as the willof the sovereign — and moral skepticism —which holds that there are no moral truths or, ifthere are, we cannot know them — natural lawtheorists have held both that there are suchtruths and that they are accessible through ordi-nary reason.5

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Through the ages, that has been a challengingposition to assume, to be sure, but the Foundersassumed it nonetheless. It should be noted,however, that their beliefs about such matterswere generally modest. Unlike moral dogma-tists of earlier eras, that is, their abiding concernwas not with any overweening moral stricturesbut, to the contrary, with liberty — with themorality of liberty. They believed, quite simply,that there is a higher law of right and wrongfrom which to derive the positive law andagainst which to judge that law at any point intime. And that higher law is, at bottom, the lawof individual liberty and, as a corollary, individ-ual responsibility.6

That all Men are Created EqualThe argument begins, substantively, with apremise about moral equality — as definedimmediately thereafter by our inalienable rightsto life, liberty, and the pursuit of happiness. Bythus defining the sense in which we are all equal,the Founders made clear what should have beenclear in any event, namely, that we are all equalonly in the sense that we all have equal naturalrights — that no one has rights superior to thoseof anyone else. Plainly, the Founders could nothave meant that we are all equal in fact, whatev-er that might mean, for such a claim would beabsurd. Nor could they have meant to imply the

“The Founders believed, quite simply, thatthere is a higher law of right and wrongfrom which to derive the positive law andagainst which to judge that law at any pointin time.”

kind of egalitarian “rights’’ that have dominated20th century thought, which are purchased onlyat the expense of individual liberty.7 Indeed, thepoint of freedom is to enable our myriad differ-ences to flourish, which they can do only underconditions of freedom.

But if the premise of equality was notmeant to imply any far-reaching egalitarianism,

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neither was it meant to leave unchallenged thosehierarchical views — some in the natural law tra-dition — that have held that some people aremorally superior to others in ways that entaillegal consequences. If we are all equal in the lim-ited but crucial sense that we all have equal nat-ural rights to chart our own courses by our own

“We do not get our natural rights from gov-ernment; we are born with those rights;indeed, whatever rights or powers govern-ment has are given to it by us.”

lights, free from the interference of others, thenwe cannot be compelled to conform to the moral-ity of others, however “superior’’ the views ofthose others may be; the only proviso is that, aswe chart our courses, we respect the equal rightsin others to do the same. A corollary of thepremise of equality, of course, is equality beforethe law, a phrase that captures well the sense inwhich the Founders saw us all as equal.

That they are Endowed by their Creator withcertain Inalienable RightsAs we move from the Founders’ premise ofequality to its implications, we are challenged toreflect on the source of rights. The central pointthe Founders sought to make here is crucial: wedo not get our natural rights from government;we are born with those rights; indeed, what-ever rights or powers government has, as theDeclaration will shortly say, are given to it by us,who must first have them to give. The centralissue here could not be more important: it iswhether we are servants of government, behold-en to it for our rights, or government is our ser-vant, beholden to us for its powers. That issuewould later manifest itself in the Constitution, inthe form of the doctrine of enumerated powers— the idea that government’s powers are dele-gated by the people, who first have them to del-egate; are enumerated in the document; and thusare limited by virtue of that delegation and enu-meration.8 But it is found here first, in the

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Declaration, in the fundamental idea of pre-exist-ing rights, rights that pre-exist government —natural rights, which we have “by nature.”

Crucial as that insight is, it does not, ofcourse, address questions about the ultimatesource of rights.9 Rather, it speaks simply to thequestion of whether rights come from govern-ment by posing, in effect, the question of wheregovernment would get its rights if not from thepeople — it being clear that people create andhence come before government. In both logicand time, then, people come first, governmentsecond. That was the central point the Founderssought to pin down.

When we turn to the question about theultimate source of rights, the Founders speak ofour being endowed by our Creator with certainrights. Given that the Founders were of diverse religious views, and given especially their belief

“It is especially important to note that theFounders couched their moral vision in thelanguage of rights, not in the language ofvirtue or values or any other moral concept.”

in liberty on such matters, it is probably wise notto read too much into that very general way ofstating the matter, not least because it was wellunderstood even then that moral theory andmoral conclusions were not necessarily ground-ed in religious beliefs — indeed, were more sure-ly grounded in principles of reason about whichreasonable people could, and even must,agree.10 Thus, reading “Creator” in this broadsense, the basic point the Founders doubtlesssought to make was the universal point that weall have certain inalienable rights, regardless ofour beliefs or any other natural or accidental fea-tures we may have. To hold otherwise — to hold,for example, that rights are in some sense a func-tion of belief — is to undercut the universalitythe Founders surely meant to convey.

Finally, it is especially important to notethat the Founders couched their moral vision in

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the language of rights, not in the language ofvirtue or values or any other moral concept.Rights are claims against others, which entailcorrelative obligations requiring others to do ornot do various things.11 Fully fleshed out, as wewill see in a moment, the classical theory ofrights orders individual acts and social affairs

“Rights and correlative obligations are thelanguage of law and liberty.”

systematically along three basic lines: the pro-hibited; the permitted (the optional); and therequired. It is objective actions, not subjectivemental states, that are the primary concern ofrights.

Thus, rights lend themselves especiallywell to litigation, legal ordering, and liberty, notleast because, as claims, they denote adversarialrelationships and invite moral justification. Toask of another, “By what right . . . ?”, is tanta-mount to saying that if that other cannot makegood on his claim, then you are free to do as youplease. In this and similar ways, the theory ofrights sorts out justified from unjustified claimsand thus orders human affairs in ways thatvirtues, values, and other moral notions areunable to do. Rights and correlative obligations,in short, are the language of law and liberty.When they spoke to the purpose of governmenttwo lines later, the Founders got it right: tosecure liberty through law, not to order virtue orimpose values.

That among these are Life, Liberty, and thePursuit of HappinessIn the Declaration, and even in the Constitutionand the Bill of Rights, the Founders could hardlyhave listed or enumerated all of our rights. Onone hand, we have an infinite number of rights,owing to the myriad facts that might enter intotheir descriptions and the possibilities that lan-guage permits. But on the other hand, looked atlogically, there is really only one right, the right

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to be free, from which all other rights, howeverdescribed, may be derived.12 In a brief and gen-eral statement, therefore, one wants to try to cap-ture something of the essence of the matter,which the Founders did when they said that“among” our rights are those to “Life, Liberty,and the Pursuit of Happiness.”

For a fuller picture of the Founders’ moralvision, then, it falls to us to flesh out that generalstatement by repairing to both the theory and thepractice of the matter. In this, it is well to drawupon the sources the Founders themselves drewupon: the English common law, which for cen-turies had been thought to embody “right rea-son”;13 and moral philosophers like John Locke,who more than any other can be said to havebeen the philosopher of the Declaration, espe-cially through his influence on Thomas Jefferson,its principal author.14 In deriving more narrowly

“That distinction between rights and values,implicit in the right to the pursuit of happiness,is the very foundation of a free society.”

described rights and doing the casuistry in par-ticular circumstances, however, we need to takecare to ensure sound derivation and internal con-sistency; for a body of rights dubiously entailedby the first principles of the system, or conflictingwith one another, will undermine the entirerational foundation. Not every good is held byright, after all; we need to separate the legitimatefrom the illegitimate claims.

The place to begin, then, is with theFounders’ own words, and in particular with ourright to “the Pursuit of Happiness”; for in thatformulation, by implication, rests a profoundlyimportant distinction — between rights and val-ues. In so stating the matter, the Founders weresaying that each of us has a right not to happi-ness but to pursue happiness as he sees fit. Theydid not tell us how to go about that pursuit —save for the premise of equality, which entails theobligation to respect the equal rights of others to

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their own pursuits. Rather, the determination ofhow to pursue happiness is left to us, to our ownsubjective lights, our own values. Obviously,given the differences among people in their vari-ous interests and values, different people willtake different paths. The point, simply, is that wemust respect those differences as we lead ourown lives. Thus, we have objectivity in rights,subjectivity in values, which is precisely whatone would expect in a regime of freedom. Eachof us is free to live by his own subjective stan-dards, provided he respects the equal freedom ofothers. We may criticize the values of others, ofcourse, but we may not impose our values onthem.15

That distinction between rights and values,implicit in the right to the pursuit of happiness,is the very foundation of a free society. For itentails a regime of rights that can be thought ofas constituting a minimal framework withinwhich each of us is free to live, charting his owncourse — not ordered by others but simply leftalone. The idea is well captured in a phrase oftenattributed to the French philosophe Voltaire: “Imay disagree with what you say, but I willdefend to the death your right to say it.” Youhave your values, with which I may disagree, but

“As long as we respect the equal rights ofothers, we are both free to choose andresponsible for the choices we make, goodand bad alike. That is what freedom is allabout.”

I will defend your right to pursue them. In a freesociety, each of us may make as much or as littleof his life as he wishes and can. As long as werespect the equal rights of others, we are bothfree to choose and responsible for the choices wemake, good and bad alike. That is what freedomis all about.

To ground the theory of rights, however,giving it greater specificity, we look to both thecommon law and Locke, where we find that in

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theory and experience alike, rights are intimatelybound up with property. Locke put it well:“Lives, Liberties and Estates, which I call by thegeneral Name, Property.”16 James Madison, theprincipal author of the Constitution, made a sim-ilar point when he wrote: “As a man is said tohave a right to his property, he may be equallysaid to have a property in his rights.”17 TheFounders understood well that all rights, how-ever described, can be thought of as propertyand, to aid in derivation, reduced to property. If

“In a free society, people are free to bevirtuous — or not. Indeed, only whenvirtuous acts are voluntary can they becalled virtuous.”

everything we hold by right — everything towhich we can be said to be “entitled” — can beconceived of as property, then we have a placefrom which to start when we think about ourmany rights — and think about the many claimsthat may turn out not to be rights.18

Thus, if the foundation of our rights isproperty — broadly understood as lives, liber-ties, and estates — it is but a short step to thinkof right violations as involving the taking ofproperty, the taking of things that belong freeand clear — “by right” — to others. So doing, wecan imagine a world in which people are free tolive their lives, exercise their liberties, and buildand enjoy their estates, provided only that in theprocess they refrain from taking what belongs toothers — the lives, liberties, and estates of thoseothers.

What people may not do, then, is committorts or crimes: they may not take from others bytrespassing on the persons or property of thoseothers or by otherwise taking that property. Ifthey do, they are then obligated to make theirvictims whole. Thus, when the Founders spokeof “inalienable” rights, they could have meantonly that others may not alienate our rights. Wemay alienate them, however, by committing tortsor crimes, for which we are responsible. When

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we do, we alienate our right to those holdingsthat may be necessary to right the wrong wehave done. Thus are rights and obligations alien-ated or extinguished and new rights and obliga-tions created as we act in the world.19

At this stage in the derivation, then, our onlyobligation is to leave each other alone. Thus, it isparticularly important to notice, in the context ofthe modern welfare state, that in a free societythere is no obligation to assist others who mayneed assistance, although people are at perfect lib-erty to offer such assistance if they wish. We maythink it good that they do — that is our value judg-ment — but we cannot compel that assistance. Forall association must be voluntary, which is whycommitting torts or crimes — taking people’slives, liberties, or estates without their consent —is not simply wrong, but violates their rights. Werewe to compel assistance, we too would violaterights. In a free society, people are free to be virtu-ous — or not. Indeed, only when virtuous acts arevoluntary can they be called virtuous.20

In the world thus far sketched, then, peopleare free to make as much or as little of themselvesas they wish and can. In the ordinary world,however, most people do that not as isolatedindividuals but through association with others.We come then to the second great font of rights,a corollary of property — promise or contract.As part of our liberty, our right to freely act, eachof us has a right to associate with others, provid-ed only that the association be voluntary on allsides. Through such association — ranging from

“We can hardly violate rights in the name ofsecuring rights and be thought to be doingso by right.”

spot transactions to bargains over time to privateclubs, churches, marriages, partnerships, giantcorporations, and on and on — people exchangetheir various holdings and civil society in all ofits rich variety arises.

Here too, however, rights and obligationsare constantly being alienated and created as

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people arrange and rearrange their affairs withothers as they think best. The only requirementis that promises or contracts be kept, failingwhich those who breach or defraud or take orotherwise fail to perform as promised must maketheir victims whole, as detailed in the variousbranches of the classic common law that treatsuch matters. It is especially important to noticein all of this, however, that it is people who ordertheir own affairs, not governments. In fact, tothis point in the Declaration the Founders havenot even spoken of government. We turn to thatnext.

That to Secure these Rights, Governments areInstituted among MenAs should be clear from the sketch just complet-ed, the world of rights and obligations envi-sioned by the Founders is systematic, rich, andvaried — and grounded in reason, in the moralprinciples of liberty, property, and contract thatthe Declaration implies. Only now, after they

“It is not from moral necessity that we movefrom the state of nature to a realm with gov-ernment, and we need to be candid aboutthat.”

have outlined that world, do the Founders turnto government. Thus, as we move from the stateof nature to a world with government, we comeat last to fundamental questions about politicallegitimacy — to questions about the properscope of government power and, indeed, aboutthe legitimacy of government itself.

The purpose of government, the Founderssay, is to secure our rights. That is why we insti-tute it. But is that a proper end of government?And are the powers that serve that end legiti-mate? More immediately, why would we wantto secure our rights through government ratherthan through some other, private institution?Those are skeptical questions, asking whethereven the limited conception of government the

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Founders set forth is legitimate. On the otherside, however, there are questions about whetherthe Founders’ conception may be too limited.Are there additional powers, beyond those ofenforcement, that legitimately belong to govern-ment? Those questions, too, will need to beaddressed.

Because the issues here are complex andsubtle, we will have to sort them out slowly andcarefully, if only in outline. To do that, we takethe same course we took above, the course thatLocke took when he, too, thought about suchquestions; but we will press the issues a bit fur-ther than Locke did and ask first what rights wewould have toward securing our various rights ifthere were no government, if we were in the stateof nature. Call them second-order rights, if youwill; they are the rights that come into play onlyafter the first-order rights outlined above havebeen, or are about to be, violated.

Merely stating the matter, however, revealsits complexity. For we are dealing now with arealm of considerable uncertainty in which prin-ciples of reason can go only so far. To be sure, anysecond-order rights we might have must bederived from our first-order rights to be free:enforcement rights, that is, must be justified withreference to the rights we have to be enforced.But in addition, and apart from the question of

“The power government exercises to securerights is legitimate, even if specific applica-tions of the power may be illegitimate, andeven if government’s monopoly claim maynot be deeply grounded.”

derivation, those second-order or enforcementrights must be exercised in ways that respect thefirst-order rights of others. Indeed, we can hard-ly violate rights in the name of securing rightsand be thought to be doing so by right.

Thus, while a known criminal has no rightnot to be arrested and forced to make his victimwhole — he alienated his right to be free fromarrest and from restitution obligations when he

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committed his crime — a person only suspectedof having committed a crime is in an altogetherdifferent category. What are our rights towardhim? May we arrest him? How strong must oursuspicion be before we can? And if we can arresthim, what then? It is here that the shades of gray

“Once the bounds of the enforcement powerare set as far as they can be by reason, theprecise means government may employtoward that end are up to the governed todetermine.”

that surround uncertainty intrude. It is here thatreasonable people can have reasonable differ-ences because we are dealing not with principlesof reason but with applications of those princi-ples that take reason to its limits. It is here thatsubjective values come into play as we try todraw “reasonable” lines concerning where oneperson’s right ends and another person’s rightbegins.21

All of this suggests, then, that there are cer-tain “natural” springboards, as it were, to legiti-mate government. It is as if in the very nature ofthe problem — in particular, in the need to findneutral decision procedures and principleswhere reason alone will not avail — we find thefoundation of government’s legitimacy. We turnto government, that is, because as a practicalmatter we need to know where the lines are —what our rights are — in the complex and uncer-tain realm of enforcement, where reason comesto its principled end. To be sure, reason tells usthat we have rights of enforcement. And it tellsus further that we may, for example, arrest thosewe have good reason to believe have violated ourrights — and may not arrest others; but it doesnot tell us the precise scope of that or similarrights. Without government and the exclusivepower it purports to have to provide uniformanswers to such questions, we can imagine astate of some confusion and, indeed, anarchy.

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Yet for all of that, the argument for govern-ment enforcement of rights — rather than privateenforcement by, for example, competing privateenforcement agencies22 — is prudential, notmoral. It is not from moral necessity that we movefrom the state of nature to a realm with govern-ment, and we need to be candid about that. In fact,there is no answer, other than from prudence, tothe person who complains that he would ratherenforce his own rights and that forcing him to useand pay for public enforcement — that is whatgovernment’s monopoly on the power of enforce-ment amounts to — violates his right to do it him-self. He is right.23 George Washington said asmuch when he said that “government is not rea-son, it is not eloquence, it is force.”24

It seems, then, that the best that can be saidis this: at the least, the enforcement power theFounders assigned to government, apart from itsspecific applications, is legitimate. In a state of

“The majority must justify its claim to rulethe minority; the minority does not have tojustify its right not to be ruled.”

nature, that is, each of us has what Locke calledthe “Executive Power” — the power to secure hisrights.25 Thus, when government exercises thatpower on our behalf, it is exercising a power thatwe would otherwise have a right to exercise our-selves.

None of that goes to the way governmentexercises the power, of course — to whether ituses force when it should not or fails to use forcewhen it should. Nor does it go to the govern-ment’s monopoly claim, its claim to the exclusiveexercise of that power. The question, rather, iswhether the executive or enforcement or policepower as such is legitimate. It is. Thus, to thatextent, and that extent only, the power govern-ment exercises to secure rights is legitimate, evenif specific applications of the power may be ille-gitimate, and even if government’s monopolyclaim may not be deeply grounded.

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Deriving their Just Powers from the Consent ofthe GovernedBut if the end for which we institute government— to secure our rights — is legitimate, it does notfollow that every means government mayemploy toward that end is legitimate. Indeed,we have only to look to the “long Train ofAbuses” listed in the Declaration to discoverpowers the Founders thought illegitimate. As wesaw above, reason can draw the broad outlines ofour enforcement rights; it cannot draw the morespecific lines. Yet if people are to have notice andif disputes are to be adjudicated uniformly andfairly, those lines must be drawn.

We come, then, to the place of will or con-sent in the system. Government is instituted tosecure our rights. But once the bounds of thatpower are set as far as they can be by reason —by the rights reason enables us to derive — the

“The Founders were not democrats, as isevidenced by the many measures they took,when it came time to draft a constitution, torestrain popular as well as representationalwill.”

precise powers or means government mayemploy toward that end are up to the governedto determine. Thus, on behalf of victims, gov-ernment may arrest and try alleged criminalsand, if they are found guilty, impose proper sanc-tions on them. Reason tells us that. It does nottell us, beyond a certain general level, what arrestor trial procedures are legitimate or what sanc-tions are proper.26

Thus, where reason is silent — or has runits course — we have to turn to some public deci-sion procedure — not simply to make the linespublic but because different people will draw themore particular lines at different places.Experience has taught us that if we want toreduce the chances of arbitrary or capriciouslines being drawn, it is best to leave the drawingto the collective judgment of the people who

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must live under them. There being no possibili-ty for reason-based lines beyond a certain point,those lines are legitimate, provided they arewithin the bounds set by reason, simply becausethey have been consented to. Thus are govern-ment’s just powers, to the extent permitted byreason, derived from the consent of the gov-erned.

In sum, then, reason tells us that govern-ment’s power to secure our rights is legitimate —it being no more than the power each of us has tosecure his own rights — even if government’sclaim to have that power exclusively stems fromprudence alone. And reason sets the broad scopeof that power. Beyond that, however, the morespecific powers or means that may be necessaryto secure our rights are made legitimate by beingderived from the consent of the governed. Thusdo reason and consent go together to limit gov-ernment, lending it a measure of legitimacy inthe process.27

But are there powers beyond those ofenforcement that belong legitimately to govern-ment? We come, then, to the other side of theissue, to the side that asks whether the Founders’conception is too narrow, or whether the reading

“Given the infirmities of consent theory, itbehooves us to submit to political determi-nation only those issues we must — indeed,if the Founders are right, only those issueswe may.”

just given to the Declaration is too narrow. Doesthe Declaration permit more power than its plainlanguage and background theory seem to sug-gest? Let us turn to those questions, startingwith the language itself.

To be sure, the phrase under consideration,read by itself, does seem to imply a broaderscope for government power than simply secur-ing rights. In fact, by itself, it suggests that anypower, whatever its purpose, is just or legitimate,provided only that it has been consented to by

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the governed. Even if that were a proper readingof the phrase, however, it would do little toenhance the scope of legitimate power, for it is allbut impossible to satisfy the consent criterion, asa moment’s reflection will show. Indeed, we areup against the classic problem of consent theory— it doesn’t do the job — which the Foundersseemed to have understood better than many dotoday.

Consent theory starts from an unobjection-able premise — that individuals have a right torule themselves and a right not to be ruled byothers. And that premise has an unobjectionable

“The redistributive power amounts to theftby government, plain and simple. Yetaround the world today it constitutes theprincipal business of government.”

corollary, central to the theory of rights, that peo-ple can bind themselves through their freelygiven consent, as they do every day when theymake promises or sign contracts. But it is onething for an individual to bind himself, quiteanother for a group of individuals to bind eachother. To be sure, if each member of the groupconsents, no one can be heard later to complain.But rarely, if ever, do we get unanimity, especial-ly on political questions. We get majorities andminorities; and majorities cannot bind minori-ties, not if consent is to be the touchstone of legit-imacy. Indeed, it is not for nothing that we speakof the tyranny of the majority.

The classic theorists appreciated that prob-lem, of course, which is why some of them pro-posed the “social contract” as a solution.Through a social contract we agree unanimouslyto be bound thereafter by majority rule (or byany other fraction of the whole we choose, forthat matter). Thus, the initial unanimity ensureslegitimacy thereafter, provided the proceduresagreed to by all are followed thereafter.28 Socialcontract theory works for all manner of privateassociations because we can point to the consentthat individuals give going in. With govern-

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ment, however, very few of the governed areever in such an original position. In fact, even inAmerica, where we “constituted” ourselves as apeople through the consent that constitutionalratification signifies, the process reached only aminute fraction of all those bound by it in theyears since. As a practical matter, that may be thebest we can do — and it is better than many oth-ers have done, to be sure. But it hardly serves asthe kind of consent that can bind the minority tothe will of the majority.

We come then to the last resort of consenttheorists, the idea of “tacit consent”: by stayingwe tacitly consent to be bound by the will of themajority. Unfortunately, that argument provesboth too much and too little. It proves too muchbecause it would render even dictatorial rulelegitimate — provided only that the subjectsstayed. And it proves too little because it doesnot render the majority’s rule legitimate. Rather,it places the minority in the position of having tochoose between two of its entitlements — itsright to stay where it is, and its right not to comeunder the will of the majority. The majority mustjustify its claim to rule the minority; the minoritydoes not have to justify its right not to be ruled.Indeed, the argument from tacit consent puts the

“America’s Founders set forth a powerfulmoral vision of individual liberty, individ-ual responsibility, and limited government— government limited to securing ourrights.”

majority in the place of the gunman who says“Your money or your life.” You may give himyour money “voluntarily,” but we would hardlysay you consented to do so — much less that heobtained it by right.

To return to the Declaration, then, the ideathat the phrase in question should be read as say-ing that any power of government is legitimate ifit derives from the consent of the governed issimply undercut by the facts: even in a demo-cratic regime, “the governed” do not consent

19

except in the most attenuated of ways. Indeed, tosuppose that a single vote every few years suf-fices to empower a majority of representatives,under a representational system, to thereafterbind all other citizens to their will is far-fetched,to say the least. Except in the most limited sense,the Founders were not democrats, as is evi-denced by the many measures they took, when itcame time to draft a constitution, to restrain pop-ular as well as representational will. They under-stood well, and wrote often, about the problem

“It was the doctrine of enumerated powersthat was meant to constitute the principaldefense against overweening government.”

posed by the tyranny of the majority. Indeed,one of the central reasons for having a constitu-tion is to address that problem.

What, then, was the limited sense in whichthe Founders were democrats? To answer thatquestion, we have simply to consider the alterna-tive — no consent at all. Plainly, that regime canbe even more tyrannical than an unrestrainedmajoritarian regime, as the Founders knew fromtheir experience with English rule. Yet if politicalconsent is a poor imitation of private consent —the consent of ratification, even if unanimous,cannot bind later generations; the consent ofperiodic elections, which is never unanimous,cannot bind minorities — one wants to give con-sent no more credit than it can bear. So doing,ratification gets the legal system off the ground,lending it such legitimacy as it can. Subsequentelections decide issues properly within theirscope, lending those outcomes such legitimacyas elections can. That is the best consent can do.

Plainly, the more specific aspects of theenforcement power, as discussed above, areproperly decided through consent. For the pru-dential reasons there sketched, they cannot beleft to private determination. That being thecase, consent, however imperfect, can give ussome sense of where to draw the lines in ques-tion — and can lend such legitimacy to the deci-

20

sions that follow as is lent by their reflecting theconsent of those living under them.

Given the infirmities of consent theory,then, it behooves us to submit to political deter-mination only those issues we must — indeed, ifthe Founders are right, only those issues we may.The Founders spoke to that question by limitinggovernment to the job of securing our rights. Allelse was to be left to the private sector where freepeople could lead their lives and solve theirproblems through voluntary association. Thereis no reason in principle, then, why so much thatis done today through government should not bedone privately — and every reason in moral the-ory why it should be done privately rather thanthrough the inherently coercive institution ofgovernment.

But all of this presumes, for the sake ofargument, that the phrase under review is right-ly read by itself when all the evidence runs theother way. In fact, when placed in context —“that to secure these rights, governments areinstituted among men, deriving their just powersfrom the consent of the governed” — the phrasetakes on the meaning assigned to it earlier. Itqualifies the preceding phrase by making it clear

“The idea was to limit government from theoutset by limiting the things it could do.”

that the powers requisite to securing our rights,to be just, must be derived from the consent ofthe governed. To the extent it can, that is, con-sent, in the form of original ratification and sub-sequent elections, makes those powers just. Itdoes not, however, make any other powers, serv-ing other ends, just.

On this natural reading, therefore, govern-ment’s power is limited to securing our rights.And it is further limited, and made legal, by theconsent of the governed. To read the phrasemore broadly — to assume, for example, thatthere are legitimate powers in addition to thosenecessary to secure rights — is to raise a funda-mental question: Where would those powers

21

come from? Again, consent alone will not do thejob, as just shown. But even if it did, before theycould give government any such powers, peoplemust first have the powers themselves, much asthey have the enforcement or police power in thestate of nature. On that score, however, there areserious problems.

We can see this by noticing that for all theirapparent variety, government powers can bereduced to just three morally relevant kinds.

“Whereas the Founders had thought ofgovernment as a necessary evil, progres-sives saw government as an engine ofgood, an instrument to solve “social problems.”

There is first the enforcement or police powerdiscussed above — the power to secure ourrights. As already noted, that power is legitimateinsofar as it is a power that each of us has in astate of nature, the exercise of which, if exercisedcorrectly, would violate no rights.

Second, there is the eminent domain power,the power to take private property for public useprovided just compensation is paid to the owner.Known as the “despotic power” in the 17th and18th centuries, it was so known because, unlikewith the police power, none of us could havesuch a power in a state of nature. Even with justcompensation, that is, eminent domain involvesa forced association, which the theory of rightsforbids. Its rationale as a power of governmentstems from three considerations: practical neces-sity (without the power, many believe, publicprojects could be blocked by a single individualwho would be in a position to “extort” unrea-sonable compensation); just compensation (theowner is made whole while the public is betteroff); and in the case of the Fifth Amendment’sTakings Clause, for example, constitutional con-sent (through ratification we all agreed to givethe power to government). None of those ratio-nales is deeply satisfying, of course, but taken

22

together they do mitigate the despotic characterof the power.

Finally, the third basic power of govern-ment, especially prominent in the 20th century, isthe redistributive power and its regulatory corol-lary — the power to take from some and give toothers. This is a naked power that enjoys nocredible rationale whatsoever — not from thetheory of rights, at least. None of us has such apower in a state of nature. Nor do any of theeminent domain rationales apply to the redistrib-utive power: there is no practical necessity, nojust compensation, and no constitutional consentfor the power. In a word, however noble-sound-ing the purported rationales for its exercise maybe, the power amounts to theft by government,plain and simple. Yet around the world today itconstitutes the principal business of government.

To return to the Founders’ conception of thepurpose and limits of government, given themoral vision on which their conception rests, it ishard to square even the eminent domain power

“After a few critical opinions that the Courthanded down between 1936 and 1938, theConstitution was standing on its head.”

with that vision. Yet we know that colonial gov-ernments exercised the power, as did later stategovernments. And we know that when it cametime to draft and ratify a Constitution, theFounders included such a power, by implication,in the Bill of Rights. One could chalk this up toexpediency, of course. Or one could say that atthe end of the day the not-insubstantial ratio-nales that support the power prevailed.

What one could not say, however, is thatanything like the redistributive power can be sorationalized. On the Founders’ vision, the emi-nent domain power is a stretch, but constitution-al consent, plus the fact that the victim is leftwhole, may cover that stretch. The redistributivepower, by contrast, is not even close. Under nocircumstances can it be squared with the moralprinciples the Founders set forth. In a state of

23

nature, A could not take from B to give to C. Onwhat possible ground, then, can governmentstep into A’s shoes and take B’s goods, howevernoble its motive? Where would government getsuch a power if not from A? But A has no such

“Today there seems to be almost no subjecttoo personal or too trivial for federal regula-tory attention.”

power to give. To suggest that mere consentcould justify the power is to ignore the rest of theDeclaration, and to invest consent with a moralforce it simply does not have, as we have justseen. The redistributive power is not simply ille-gitimate, therefore, but starkly so.

In sum, then, America’s Founders set fortha powerful moral vision of individual liberty,individual responsibility, and limited govern-ment — government limited to securing ourrights. They believed that individuals, families,and organizations of all kinds would flourish ifonly they were free to do so, if governmentwould provide a legal framework within whichthat might happen, then step aside. To theextent that their plan has been carried out, theyhave been proven right. To the extent that theirplan has been ignored, both here and abroad,they especially have been proven right. Let ussee, very briefly, how the plan has fared inAmerica.

THE CONSTITUTIONEleven years after they declared the nation’sindependence, which American patriots finallywon on the battlefield at Yorktown in 1781, theFounders drafted a constitution for the UnitedStates that reflected to a large degree the princi-ples the Declaration had set forth. Not every-thing in the Constitution did that, of course: ittook a civil war to end the institution of slavery,for example, which the Constitution implicitlyrecognized. But for the most part, the documentcalled for a limited national government, whichratification brought into being in 1789.29

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In drafting the Constitution, the Foundersneeded to establish a government at once strongenough to secure our rights, and do the few otherthings they thought it should do, yet not sostrong as to violate rights in the process. Towardthat end they gave the national government lim-ited powers, then limited the exercise of thosepowers through an intricate system of checksand balances. Thus, they divided power betweenthe national and the state governments, leavingmost power with the states and the people, thenseparated national powers among three indepen-dent yet interdependent branches of the nationalgovernment. Congress was given the lawmak-ing power, for example, but the president could

“In short order, both sides would buy intothe New Deal’s “democratization” of theConstitution — the expansion of publicpower over theretofore private affairs.”

veto the bills Congress passed. And the courtscould decide cases arising under theConstitution, particularly cases raising the ques-tion whether the political branches were actingwithin the scope of their authority and in a man-ner consistent with the rights of the people — apower that reached state actions as well after theCivil War amendments were ratified.

The Doctrine of Enumerated PowersBut it was the doctrine of enumerated powersthat was meant to constitute the principaldefense against overweening government. Sinceall power began with the people, the peoplecould limit their government simply by giving it,through the Constitution, only certain of theirpowers. That, precisely, is what they did,through enumeration, thus making it clear thatthe government had only such powers as werefound in the document. The very first sentenceof the Constitution, following the Preamble,makes the point: “All legislative Powers hereingranted shall be vested in a Congress . . .”

25

(emphasis added). The point is reiterated in theTenth Amendment, the final documentary state-ment of the founding period: “The powers notdelegated to the United States by theConstitution, nor prohibited by it to the States,are reserved to the States respectively, or to thepeople.” In a word, power was delegated by thepeople, enumerated in the Constitution, and thuslimited.

The idea, plainly, was to limit governmentfrom the outset by limiting the things it could do,almost all of which, as Article I, Section 8 of theConstitution indicates, relate to securing rights.In fact, James Madison, the principal author ofthe Constitution, made the point in 1794 when herose from the floor of the House to object to awelfare proposal, saying that he could not

“The Declaration and the Constitution, asamended, are consistent and elegant state-ments about the purpose and limits of government.”

“undertake to lay [his] finger on that article ofthe Federal Constitution which granted a right toCongress of expending, on objects of benevo-lence, the money of their constituents.”30 Noticethat Madison was not objecting to benevolence. Rather, he was making a point about constitu-tional principle: however worthy the end mightbe, Congress had no power to pursue it since thepeople, through their Constitution, had givenCongress no such power. In 1887, exactly 100years after the Constitution was drafted,President Grover Cleveland made a similar pointwhen he vetoed a bill to buy seeds for Texasfarmers suffering from a drought, saying hecould “find no warrant for such an appropriationin the Constitution.”31

The Climate of IdeasWhy then, today, do we have a federal leviathanin our midst, redistributing our wealth and regu-lating virtually every aspect of our lives, making

26

a mockery of the Founders’ vision of limited gov-ernment? The answers are many, but from a con-stitutional perspective a few stand out — allrelating, not surprisingly, to changes in the cli-mate of ideas, which indicates once again howimportant ideas are in the shaping of events.32

Because there will always be those who trulybelieve in expansive government, seeminglyignorant of the moral implications, to say noth-ing of those who simply use government toadvance their own ends, it is crucial to restrainsuch people through law — through constitu-tional law, in particular. But law is not self-enforcing. Nor can it be written in a way thatdoes not require some human interpretation,which is where background ideas come into playand why it is so important to attend to thoseideas.

Standing behind the Constitution, ofcourse, was the classical theory of natural rights,derived from principle and grounded in proper-ty and contract. That theory came under attackearly on when Jeremy Bentham, the father ofBritish utilitarianism, wrote in 1791 that talk ofnatural rights was “simple nonsense; natural andimprescriptible rights, rhetorical nonsense, —nonsense upon stilts.”33 Thus began the slowdecline of natural rights theory and the rise of theidea that law, policy, and moral judgments gen-erally were to be justified not by their followingfrom some overarching principles of right andwrong, rooted in reason, but by their serving toproduce various goods. Utilitarians, for example,called for ignoring or overriding rights if doingso would result in “the greatest good for thegreatest number” — even if they never did tell ushow to determine whether that criterion wasmet.34

With the decline of natural rights theoryand the rise of utilitarianism, our focus shiftedgradually from principle to policy, from whethera policy or law or court decision was right towhether it was good or beneficial. That amount-ed to a shift from reason to will, of course, toshifting from an objective to a subjective stan-dard. And that meant that more issues might beopened to public determination. If a certain prin-

27

cipled position on property seemed not to pro-duce the greatest good for the greatest number,for example, why not reconsider that positionand even put it to a vote — not least to get somefeel for what the “public interest” is, for what thepublic thinks about the greatest good for thegreatest number? Not surprisingly, then, the riseof utilitarianism was followed by an increasedinterest in expanding the scope of democraticdecision making. And, indeed, if the range ofpublic issues was to be expanded and thoseissues were to be decided not as a matter of rightand wrong but as a matter of good or bad, whynot have the decisions made by the people?

Although those background developmentsset in only gradually, they all came to a head, itseems, at the turn of the century, during theProgressive Era, when a fundamental change inour conception of government became increas-ingly apparent. Whereas the Founders hadthought of government as a necessary evil, to befeared and strictly limited, progressives saw gov-ernment as an engine of good, an instrument tosolve the many “social problems” that had arisenas a result of urbanization and industrializationfollowing the Civil War. Spurred on by concep-tions of “good government” drawn fromGerman universities and the rise of the newsocial sciences, progressives were devoted to“social engineering,” to changing and improvingsociety — and people — through government.Indeed, so far-reaching was the change in ourconception of government by 1900 that the edi-tors of The Nation could write that year, in anessay lamenting the decline of liberalism, that“[t]he Declaration of Independence no longerarouses enthusiasm; it is an embarrassing instru-ment which requires to be explained away.”35

The Court CollapsesStanding athwart progressive efforts to expandgovernment was the Constitution, of course,which judges continued to regard, for the mostpart, as the bulwark of our liberties. Yet evenhere, changes in the climate of ideas had begunto chip away at constitutional principle as “poli-cy” found its way slowly into judicial opinions.

28

Still, principle largely held until the New Deal,when President Roosevelt began his long marchto radically expand the role of the federal gov-ernment. The crisis came after several suchefforts were rebuffed by the Supreme Court: itwas then, early in 1937, that Roosevelt threat-ened to pack the Court with six additional mem-bers. Not even Congress would go along.Nevertheless, the Court-packing scheme workedas the Court, hearing the message, made thefamous “switch in time that saved nine.”36 Aftera few critical opinions that the Court handeddown between 1936 and 1938, the Constitutionwas standing on its head.

Upon reflection, it is surprising how little ittook to make so radical a change in our politicallives; yet just two clauses of Article I, Section 8— the General Welfare Clause and the Com-merce Clause — are the source, respectively, ofthe federal government’s modern redistributiveand regulatory powers. Those clauses were rad-ically reinterpreted by the Court, which thenturned to the Bill of Rights, in 1938, to radicallyreinterpret it. Here, very briefly, is how it wasdone.

Rewriting the ConstitutionThe centerpiece of the Constitution, again, is thedoctrine of enumerated powers, which limits thefederal government to its authorized ends.Consistent with that doctrine, as Madison,Jefferson, and others made clear, the GeneralWelfare Clause could not have afforded Congressan independent power to spend for the generalwelfare; for under such a reading, Congresswould be able to spend for any end, enumeratedor not, provided only that it served the “general”welfare, and thus would be able to evade the lim-its imposed by enumeration.37 No, the clausewas meant to serve as a shield against overween-ing power, not as a sword of power: it was meantto limit Congress’s spending for enumeratedends by requiring that spending be for the gener-al rather than for any particular or local welfare.It was meant, in short, to limit Congress’s enu-merated powers, not to undermine the doctrineof enumerated powers itself.

29

Nevertheless, in 1936 the Court said, albeitin dicta, that Congress did have an independentpower to spend for the general welfare;38 then in1937 the Court announced that conclusion as partof its holding and added that it would not there-after police Congress as to whether it was spend-ing for the general or for some particular welfarebut would leave it to Congress to police itself.39

The result, not surprisingly, has been an ever-expanding welfare state as Congress has beenunable to resist — when it has not itself abetted —unrestrained demands on the public treasury —all in the name of the “general welfare.”

The story of the Commerce Clause is simi-lar, for it too was meant to be a shield againstpower, not a sword of power as it is today. In thiscase, however, the Founders were concerned torestrain not federal but state power, which hadbeen used under the Articles of Confederation toenact protectionist legislation aimed at protect-ing local manufacturers and merchants againstcompetition from out-of-state interests. Seekingto ensure a national market and a regime of freetrade among the states, the Founders gaveCongress the power to regulate, or “make regu-lar,” commerce among the states. It was thus apower essentially to negate state efforts atrestraining trade — and in fact was so read in thefirst great Commerce Clause case in 182440 —and to enable Congress to take such other mea-sures as might be necessary and proper to ensurefree trade.41

Unfortunately, that functional account ofthe clause was gradually replaced over the yearsby a narrow, textual reading of the words “com-merce” and “among,” which left the Court in1937 with slim precedents as it faced the NewDeal’s regulatory juggernaut. Cowed by theCourt-packing scheme that year, the justicescaved completely by saying that Congress hadpower to regulate anything that “affects” inter-state commerce — which, of course, is virtuallyeverything.42 With that, the modern regulatorystate poured through the opening floodgatesuntil today there seems to be almost no subjecttoo personal or too trivial for federal regulatoryattention.

30

Having thus eviscerated the doctrine ofenumerated powers, the Court turned next to theBill of Rights, which it gutted in a now-famousfootnote in a case called Carolene Products.43

Details of the case aside, the doctrine thatemerged, which is the foundation of modernconstitutional law,44 is this: we have two kindsof rights — “fundamental” rights, like the rightto vote and the free-speech rights that are associ-ated with the democratic process; and “nonfun-damental” rights, like rights of property andcontract and rights associated with “ordinarycommercial transactions.” When legislation orenforcement actions implicate the first categoryof rights, the Court will give those measures“strict scrutiny” and will most likely find themunconstitutional. By contrast, when measuresimplicate the second category of rights, they willbe given minimal scrutiny by the Court: if theyare “rationally related” to some “conceivable”government end, they will pass constitutionalmuster.

Needless to say, the floodgates were nowalmost fully opened. With the government’sredistributive and regulatory powers all but ple-nary after 1937, only our rights could be posed asa brake on federal power. After Carolene Products,however, even that brake was eviscerated, foronly if we could show that the rights implicatedby a given measure were “fundamental” couldwe hope to get a court to review the matter. Thevalue-laden distinction between two kinds ofrights — to say nothing of the distinctionbetween two levels of judicial review — isnowhere to be found in the Constitution, ofcourse.45 It was written from whole cloth to pavethe way for the redistributive and regulatoryprograms of the New Deal. Indeed, RexfordTugwell, one of the principal architects of theNew Deal, said as much some 30 years afterCarolene Products was decided: “To the extentthat these [New Deal policies] developed, theywere tortured interpretations of a document [i.e.,the Constitution] intended to prevent them.”46

With that, the Constitution truly stood onits head. As written, it is a document of enumer-ated powers, the exercise of which is limited by

31

both enumerated and unenumerated rights. Asit emerged from the New Deal, it was a docu-ment of effectively unenumerated powers, theexercise of which would thereafter be limited byrights interpreted narrowly by conservatives onthe Court and episodically by liberals on theCourt. In short order, that is, both sides wouldbuy into the New Deal’s “democratization” ofthe Constitution — the expansion of publicpower over theretofore private affairs; the onlydifferences they would have, for the most part,would be over whether there might be any rightsto brake that power. Conservatives would havedifficulty finding any rights not expressly in theConstitution, thus ignoring the plain language ofthe Ninth Amendment: “The enumeration in theConstitution of certain rights shall not be con-strued to deny or disparage others retained bythe people.” Liberals would ignore rights plainlyin the document, such as rights of property andcontract, while finding other “rights” not meantto be among even our unenumerated rights.

That, in a nutshell, is the state of modernconstitutional jurisprudence in America. Therewriting of the Constitution, without benefit ofamendment, goes far toward explaining howpolitical forces bent on expanding governmenthave been able to do so in the face of a documentwritten plainly to prevent that. If we are torestore constitutional government, however, weourselves must take the first step, for those“political forces” include a large portion of a peo-ple who have asked for, and even demanded, allthe government we have today — constitutionalrestraints aside.47 As a first step, we must stopasking government to do what we had no rightto ask it to do in the first place.

But we must also recognize, from a morebasic perspective, that constitutions cannot bewritten in stone: they rightly require some flex-ibility. That is not to say that any interpretationof our Constitution will do, of course. In fact,most interpretations will not do, for theFounders, through the documents they draftedand the writings they left us, made it quite clearhow they meant those documents to be under-stood. The Declaration and the Constitution, as

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amended, are consistent and elegant statementsabout the purpose and limits of government.They draw a simple yet inspiring picture ofhuman affairs. As we go about the difficult taskof limiting the leviathan we have created, wewould do well to revisit those documents andrelearn the wisdom they contain. At stake arenothing less than our liberty and the legitimacyof our legal affairs.

NOTES

1. See Paul Johnson (1991), Modern Times,New York: Harper Collins Publishers.

2. For useful discussions of the ideologicalcurrents surrounding the Declaration, seeBernard Bailyn (1967), The IdeologicalOrigins of the American Revolution, Cam-bridge: Belknap; Carl L. Becker (1922), TheDeclaration of Independence: A Study in theHistory of Political Ideas, New York: Vintagerepr., 1958; and Morton White (1978), ThePhilosophy of the American Revolution,Oxford: Oxford University Press.

3. I have discussed the issue of legitimacymore fully in Roger Pilon (1992), ‘Individ-ual Rights, Democracy, and ConstitutionalOrder: On the Foundations of Legitimacy’,Cato Journal, vol. 11, no. 3, pp. 373–90.

4. In the state-of-nature tradition, the prima-ry source the Founders drew upon, ofcourse, was John Locke (1965), ‘SecondTreatise of Government’, in Peter Laslett(ed.), Two Treatises of Government, NewYork: Mentor. For a more recent argumentin that tradition, see Robert Nozick (1974),Anarchy, State, and Utopia, New York: BasicBooks.

5. In the tradition of moral rationality, seeAlan Gewirth (1978), Reason and Morality,Chicago: University of Chicago Press; andRoger Pilon (1979), A Theory of Rights:Toward Limited Government, Chicago: Univ-ersity of Chicago, unpublished Ph.D. dis-sertation.

6. A recent work in that tradition is Richard A.Epstein (1995), Simple Rules for a Complex

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World, Cambridge: Harvard UniversityPress.

7. See Maurice Cranston (1967), ‘HumanRights, Real and Supposed’, in D.D.Raphael (ed.), Political Theory and the Rightsof Man, Bloomington: Indiana UniversityPress, pp. 43–53; Roger Pilon (1979),‘Ordering Rights Consistently: Or What WeDo and Do Not Have Rights To’, GeorgiaLaw Review, vol. 13, no. 4, pp. 1171–96.

8. I have discussed the constitutional aspectsof this point more fully in Roger Pilon(1995), ‘A Government of Limited Powers’,The Cato Handbook for Congress. Washington,D.C.: Cato Institute, pp. 17–34; reprinted as‘Restoring Constitutional Government’,Cato’s Letters, no. 9, Washington, D.C.: CatoInstitute (1995).

9. For a discussion of that subject, see thesources at note 5 above.

10. I have outlined such a view, and criticizedother methods of justification, in RogerPilon (1979), ‘On Moral and Legal Justifi-cation’, Southwestern University Law Review,vol. 11, no. 4, pp. 1327–44 .

11. See Wesley Newcomb Hohfeld (1946),Fundamental Legal Conceptions as Applied inJudicial Reasoning, Walter Wheeler Cook(ed.), New Haven: Yale University Press.

12. See H.L.A. Hart (1955), ‘Are There AnyNatural Rights?’ Philosophical Review,vol..64, pp. 175–91.

13. Edward S. Corwin (1995), ‘The “HigherLaw’’ Background of American Constit-utional Law’, Ithaca: Cornell UniversityPress, p. 26.

14. See especially the ‘Second Treatise’, note 4above.

15. None of this is to say, of course, that no val-ues are “better’’ than others or that we can-not reason about values. Clearly, we doreason about values; and we can makepowerful prudential arguments about whichvalues are superior to others. But in theend, values are subjective in the sense that,unlike rights, they vary from person to per-son; and in the more analytical sense that

34

statements about values are neither truenor false, there being no ultimate criterionof value that is immune to skeptical chal-lenge. I have discussed this issue more fullyin Roger Pilon (ed.) (1990), ‘The Right to DoWrong’, Flag-Burning, Discrimination, andthe Right to Do Wrong, Washington, D.C.:Cato Institute, pp. 1–7; repr. in TheLibertarian Reader, David Boaz (ed.), NewYork: The Free Press, 1997, pp. 197–201; andRoger Pilon (1997), untitled essay in EPluribus Unum? A Symposium on Pluralismand Public Policy, Washington, D.C.: TheAmerican Jewish Committee, pp. 61–64.

16. Locke, ‘Second Treatise’, note 4 above, p.123.

17. James Madison, ‘Property’, National Gazette,vol. 1, no. 44, March 29, 1792, pp. 174–75;repr. in Letters and Other Writings of JamesMadison, vol. 4, Philadelphia: J. B. Lippincott& Co., 1865, pp. 478–80.

18. I have developed these points more fully inRoger Pilon, ‘Ordering Rights’, note 7above.

19. Sometimes we use the word “forfeit” tomean the same thing as “alienate”: by hisact, for example, a murderer is said to haveforfeited or alienated his right to his libertyand perhaps to his life. Likewise, throughpromise or contract, we alienate and createrights and obligations on a regular basis, aswill be discussed shortly. Often, however,the question whether we can alienate vari-ous of our rights is conflated with the ques-tion whether a given right, having beenalienated to another person, will be securedor enforced. Care must be taken to noticethat those are separate questions. In partic-ular, in the nature of things — given thevagaries of life — not every right, includingrights we may have alienated to others, canor should be enforced.

20. I have discussed this issue more fully inRoger Pilon, ‘Ordering Rights’, note 7above. See also James M. Ratcliffe(1966)(ed.), The Good Samaritan and the Law,Garden City: Doubleday.

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21. It is not in the enforcement area alone thatpure reason comes to its end and valuescome to the fore. In fact, to flesh out the the-ory of rights fully we need to introduce val-ues in the areas of risk, nuisance, and reme-dies as well. Thus, reason tells us that wemay not act in ways that endanger others orconstitute a nuisance; and it tells us that ifwe violate the rights of others in whateverway we must make those others whole. Butreason does not tell us how much in theway of risk or noise or odors or what haveyou we may create; nor does it tell us whatprecisely must be done by way of remedyfor the many wrongs that might arise. Aswith enforcement, and the uncertainty thatsurrounds it, value judgments must bemade, about which reasonable people maydisagree.

22. For a discussion of how that might work,see Nozick, Anarchy, note 4 above.

23. See, e.g., Robert Paul Wolff (1970), InDefense of Anarchism, New York: Harper &Row.

24. Frank J. Wilstach (1924), A Dictionary ofSimiles, 2nd edition, p. 526.

25. Locke, ‘Second Treatise’, note 4 above, §13.26. It is no accident that the Fourth Amend-

ment speaks of the right to be free from“unreasonable” searches and seizures; thatit requires “probable” cause before war-rants can be issued; and that the EighthAmendment speaks of “excessive” bail andof “cruel and unusual” punishment. Thoseareas of the law, in their nature, requirevalue judgments. It would have been high-ly imprudent for the Founders to havedrawn those provisions more precisely.

27. Although the Declaration speaks of just orlegitimate powers, not just or legitimate gov-ernments, the legitimacy of governmentitself, as an institution, is a function, pre-sumably, of our having “instituted” it andhence, to that extent, consented to comeunder its rule. Just how much that consentserves to lend legitimacy to ongoing gov-ernments is a question we take up next, by

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implication, when we consider whetherconsent justifies powers more extensivethan the enforcement power and, more gen-erally, whether consent justifies anything inthe political context.

28. It is noteworthy that the Constitution’sRatification Clause, Article VII, reflects thesocial contract model of legitimacy: “TheRatification of the Conventions of nineStates, shall be sufficient for theEstablishment of this Constitution betweenthe States so ratifying the Same” (emphasisadded). Setting aside the problem posed bythe consent coming from state conventionsrather than from the people directly, thepoint to notice is that only those states thathad ratified the Constitution could bebound by it. Thus, it took unanimity,among at least nine states, to get theConstitution off the ground; and, as acorollary, that consent bound only thosestates.

29. I have discussed the issues that follow morefully in Roger Pilon (1993), ‘Freedom,Responsibility, and the Constitution: OnRecovering Our Founding Principles’,Notre Dame Law Review, vol. 68, no. 3, pp.507–47.

30. 4 Annals of Congress 179 (1794).31. 18 Congressional Record 1875 (1887).32. See Richard M. Weaver (1948), Ideas Have

Consequences, Chicago: University ofChicago Press.

33. Jeremy Bentham (1843), ‘Anarchical Falla-cies’, Works of Jeremy Bentham, RichardDoyne (ed.), vol. 2, p. 501.

34. The classic attempt to compute the utilitar-ian calculus was by Henry Sidgwick (1907),The Methods of Ethics, 7th edition, NewYork: Dover. See also Alan Donagan (1977),The Theory of Morality, Chicago: Universityof Chicago Press, 1977.

35. ‘Eclipse of Liberalism’, The Nation, vol. 71(1900), p. 105.

36. See Merlo J. Pusey (1973), The SupremeCourt Crisis of 1937, New York: DaCapoPress.

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37. See James Madison (1906), ‘Report onResolutions’, The Writings of JamesMadison, Gaillard Hunt (ed.), vol. 6, p. 357;Thomas Jefferson (1899), ‘Letter fromThomas Jefferson to Albert Gallatin’ (June16, 1817), Writings of Thomas Jefferson, PaulLeicester Ford (ed.), vol 10, pp. 90–1. In1828, South Carolina’s William Draytonobserved: “[I]f Congress can determinewhat constitutes the General Welfare andcan appropriate money for its advance-ment, where is the limitation for carryinginto execution whatever can be effected bymoney?” 4 Congressional Debates (1828),pp. 1632–34.

38. United States v. Butler, 297 U.S. 1, 65–66(1936).

39. Helvering v. Davis, 301 U.S. 619, 640 (1937).40. Gibbons v. Ogden, 22 U.S. (Wheat.) 1 (1824).41. I have discussed the Constitution’s

Necessary and Proper Clause, whichaddresses the means available to Congressin furtherance of its enumerated ends, inRoger Pilon (1993), ‘On the Folly andIllegitimacy of Industrial Policy’, StanfordLaw & Policy Review, vol. 5, no. 1, pp.110–11.

42. NLRB v. Jones & Laughlin Steel Corp, 301U.S. 1 (1973).

43. United States v. Carolene Products, 304 U.S.144, 152 n. 4 (1938). For a discussion of thefacts behind the case — the act underreview, which the Court upheld, was a bla-tant piece of special-interest legislationinstigated by one part of the milk industryto protect itself against competition fromanother part of the industry — see GeoffreyP. Miller (1987), ‘The True Story of CaroleneProducts’, The Supreme Court Review, pp.397–428.

44. Indeed, footnote four of Carolene Productshas been called a “great and modern char-ter for ordering the relations betweenjudges and other agencies of government.”Owen Fiss, ‘The Supreme Court, 1978 Term— Forward: The Forms of Justice’, HarvardLaw Review, vol. 93, 1979, p. 6.

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45. As the modern doctrine of judicial reviewhas evolved, we can sometimes find asmany as four levels of “judicial scrutiny.” Ihave discussed such a case — TurnerBroadcasting Systems, Inc. v. FCC, 512 US622 (1994) — in Roger Pilon (1994), ‘AModest Proposal on “Must-Carry,” the 1992Cable Act, and Regulation Generally: GoBack to Basics’, Hastings Communicationsand Entertainment Law Journal, vol. 17, no. 1,pp. 41–63.

46. Rexford G. Tugwell (1968), ‘Rewriting theConstitution: A Center Report’, CenterMagazine, March, p. 18.

47. Perhaps the attitude implicit here was bestexpressed by no less than PresidentRoosevelt himself, in a 1935 letter to thechairman of the House Ways and MeansCommittee: “I hope your committee willnot permit doubts as to constitutionality,however reasonable, to block the suggestedlegislation.” Letter from Franklin D.Roosevelt to Rep. Samuel B. Hill (July 6,1935), in The Public Papers and Addresses ofFranklin D. Roosevelt, Samuel I. Rosenman(ed.), 1938, pp. 91–92.

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