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Foundations of Liberty and Government

WHAT IS THE LAW?

Frederic Bastiat writes in The Law, “…the purpose of the law is to cause injustice from reigning.”[1] He refers to this as a negative concept of law – the law should prevent injustice, not create something else… the creating is to come naturally through our citizens, within a structure maximizing freedom, while preventing injustice. He contends, “But when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed – then the law is no longer negative; it acts positively upon the people.” When the government exceeds this role, Bastiat calls it “legal plunder,” which he says takes place when “the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.” His argument is that such legal plunder takes place because of human greed or false philanthropy (legal plunder in the name of charity).
                                                                                                                                                      
U.S. CONSTITUTION AS FIXED FRAMEWORK

“To turn the whole of society into a single organization built and directed according to a single plan would be to extinguish the very forces that shaped the individual human minds that planned it.” ~ Frederick Hayek, Constitution of Liberty (p. 37)

The purpose of the law is to create a fixed framework to prevent injustice (negative concept), rather than prescribe fixed solutions (positive concept). This is a concept the United States’ founders clearly understood. Frederick Hayek writes in The Constitution of Liberty that the early colonists discovered the British constitution had little substance and could not successfully stand against the claims of Parliament. “They regarded it as fundamental doctrine that a “fixed constitution” was essential to any free government and that a constitution meant limited government.”[2]
 
SEPARATION OF POWERS AND FEDERALISM
 
The founders did a number of things to ensure a strong framework of balanced power. First, they listed all expressed responsibilities of the federal government in the U.S. Constitution, and then they added the 10th Amendment, stating that those powers not given to federal government remain the responsibility of the states. This shows they expected the federal government to attempt to exceed its role, and therefore, tried to prevent it. Second, they established a separation of powers at the federal level within the U.S. Constitution by creating three separate branches of government, each with specific responsibilities and checks and balances upon each other. They also made efforts to balance the influence of the large and small states in the new federal government. So, in the Legislative Branch (Article One), a United States House of Representatives is created, with representation based on population, and the United States Senate, with equal representation from all states (two Senators from each state). Then, in Article Two, the Executive Branch, the Office of the President of the United States is created, with a description of responsibilities and qualifications. Lastly, a Judicial Branch is created in Article Three with a United States Supreme Court and “such inferior courts as the Congress may from time to time ordain and establish.” These three branches of government were created in the U.S. Constitution as a mechanism to ensure no single branch becomes too powerful. This has become known as our system of “checks and balances,” because the Constitution establishes specific mechanisms for each of these three branches to check and balance each other’s authority.
 
FEDERALISM – Preserving Powers of the States
Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Another realization of our early founders is that there needed to be a way to ensure the new federal government did not become too powerful, taking over powers that were intended for the states alone. So, in the Bill of Rights, the Tenth Amendment was added, stating that powers not given to the federal government belong to the states.
 
The U.S. Constitution was created “…in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity” (Preamble). The Constitution defines specific powers for the federal government and leaves the rest to the states. Yet, since the 18th century, we have witnessed a significant departure from this foundational framework, which you will see as you read the other papers from Regular Folks United. In order to have a future of prosperity, limited government and liberty must endure.

[1] Bastiat, F. (1850). The Law (2007 edition). Irvington-on-Hudson, NY: Foundation for Economic Education.
[2] Hayek, F. (1960). The Constitution of Liberty. Chicago, IL: The University of Chicago Press.

 

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