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Socialism and the Constitution

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Socialism and the Constitution Socialism and the Constitution By Michael W. McConnell, Senior Fellow, Hoover Institution You say you’ll change the constitution private property; and it contains a number of safeguards Well, you know designed to foster a free and prosperous economy. We all want to change your head. Would a Socialist Revolution Require Us to Change the But if you go carrying pictures of chairman Mao Constitution? You ain’t going to make it with anyone anyhow . The Beatles were right: a socialist revolution inspired by — “Revolution,” the Beatles (1968) “pictures of Chairman Mao” (or tee-shirts of Che Guevara) would indeed have to “change the constitution.” Revolutions Justice Oliver Wendell Holmes famously described the US entail violence undisciplined by law or orderly process; the Constitution as “made for people of fundamentally differing Constitution requires due process of law, enshrines the views.” (Lochner v. New York dissent) By that, he meant right of habeas corpus, forbids arbitrary confinement, and that the Constitution does not commit the nation to any interposes a jury of one’s peers between the accused and particular ideological or economic theory, including laissez- his accusers. Revolutions displace elected government with faire capitalism. Instead it leaves decisions about national self-appointed leaders purporting to speak in the name of policy to the democratic process, subject to the constraints the People; the Constitution reserves governing power to of the Bill of Rights. Within the range of ordinary politics, republican institutions, with regular elections at specified Holmes was correct: Americans can decide, through their intervals. (No, Mr. Trump cannot delay the presidential elected representatives, to have high taxes or low, generous election, whatever nonsense he may tweet.) Revolutions welfare payments or a basic social safety net, government- seize control over the media for dissemination of news and owned enterprises or privatization, heavy-handed or light- opinion; the First Amendment insists that these be under touch regulation. That is the difference between democratic decentralized private control, allowing dissenting voices to socialism and a largely free-enterprise economy. As practiced be heard—even voices deemed by the dominant group to be (more in the past than today) in the Scandinavian countries, retrograde or pernicious. A socialist revolution along Marxist “democratic socialism” has meant a capitalist, private-profit or Maoist lines would bring an end to private property and the driven market economy, with high rates of taxation and market ordering of society through private contract, while the economic redistribution. In its post-war British incarnation, Constitution, by contrast, explicitly protects private property “democratic socialism” added government ownership of major and the obligation of contract. industry. (This was abandoned mostly for the pragmatic Of course, this presupposes that at a time of revolutionary reason that government is not a good manager of economic upheaval the guardrails of the Constitution would be respected. enterprise.) None of this is forbidden by the US Constitution. That is far from certain. It might even seem improbable; Congress can set taxes as high as it wishes and can devote revolutionaries do not typically respect the niceties of written the proceeds to redistributionist policies. Governments constitutions. But the structural features of the Constitution— can, if they wish, use the power of eminent domain to seize its division of power among a large number of independently ownership of the means of production (provided that owners chosen and controlled entities—is designed to make it as are compensated for the value of property taken), and they difficult as possible for mass movements to impose their have owned and run large enterprises like the Tennessee Valley Authority. Regulation of some sectors of the economy will on the nation as a whole, without the time for reflection can be so extensive that the companies are rendered “private” and resistance. Power is divided among three branches at in name only. Most policies that go by the label “democratic the national level, fifty different states, and thousands of socialism” are thus permitted under the Constitution, so long municipalities, with coercive authority further divided among as these objectives are pursued peacefully, democratically, and police, militia, and military (a point that has come to public in accordance with law. attention recently, in connection with the disputed use of federal troops and agents to enforce order in the cities over But the Constitution is not completely indifferent to the the objection of local officials). A faction pushing radical nature of the socioeconomic regime. It does not commit the change cannot simply seize the levers of power at one nation to any one set of policies, but it stands as a barrier to central location; it has to build support in diverse places like revolutionary absolutism; it rests on a philosophy of individual California and Texas, Chicago and Pensacola. Although the rights that is most consistent with liberal democracy and “influence of factious leaders may kindle a flame within their Socialism and the Constitution | McConnell 1 particular States,” James Madison wrote, the diffusion of of little avail to the people, that the laws are made by men of political authority will make them “unable to spread a general their own choice, if the laws be . repealed or revised before conflagration through the other States” (Federalist 10). they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it Even apart from actual revolution, the checks and balances will be to-morrow.” Not only does uncertainty about the law built into American government make it difficult to anyone, “[poison] the blessings of liberty itself,” but it dampens the whatever their ideology, to achieve rapid and transformative incentive for socially productive economic endeavor. “What change. Both Barack Obama and Donald Trump swept into prudent merchant will hazard his fortunes in any new branch office with the support of both Houses of Congress (Obama of commerce when he knows not but that his plans may be with a filibuster-proof majority in the Senate), but both rendered unlawful before they can be executed?” Stability and presidents committed the political sin of overreach, both had predictability of law is essential to “the success or profit” of their agendas delayed by a judiciary that was largely named “every useful undertaking.” by the other party, and both lost their majority in the House of Representatives in just two years. Our Constitution allows The Philosophy of the Constitution democratic change, but the checks and balances in the system are designed to slow things down, to give the American people Although democratic socialism is not “unconstitutional” if time to reflect on whether the change being pressed by their achieved through democratic means, the Constitution has a representatives is really desirable. The Founders attempted certain philosophical content, which impresses itself subtly to mold public democratic institutions in such a way as to and powerfully on the national ethos. The Constitution was protect “the rights of the minor party” from the “superior written against a backdrop of natural rights theory, in which force of an interested and overbearing majority” (Federalist the predominant purpose of government was to protect 10). The constitutional system might thus be described as the life, liberty, and property of each person. The Founders “small-c conservative”: not right-wing, but resistant to rapid understood that government of this sort would not only “secure and convulsive change from either the right or the left. the blessings of liberty” but also establish the preconditions for long-lasting national prosperity. The Constitution did The Constitution’s principal mechanism for taming and not bind future generations to any particular ideology, but controlling the power of majority factions was what today we it did presuppose the importance of individual rights, and it would call diversity, and the Founders called “multiplicity of laid the groundwork for the most productive economy the factions.” In a relatively homogeneous district or jurisdiction, world has ever seen. a particular group—whether ideological, economic, religious, racial, or based on some other common characteristic—can The writings of English philosopher John Locke are a good dominate and sweep all before it, without need for compromise place to start. In his Second Treatise on Government (1689), Locke or for consideration of the concerns and interests of dissenters. reasoned that by nature, all human beings are “free, equal, and When the majority is “united by a common interest, the independent.” This freedom, equality, and independence is the rights of the minority will be insecure” (Federalist 51). The foundation of the rights to personal security and property. all-white districts of the Jim Crow South provide a familiar As Locke put the point: “Every man has a property in his historical example: political leaders in such districts had no own person: this no body has any right to but himself. The political need to heed the interests of the African American labour of his body, and the work of his hands, we may say, minority disadvantaged by their policies. But the point are properly his.” can be generalized. Modern social science research has But while all people have rightful ownership of themselves confirmed Madison’s intuition that the presence of dissenting and the products of their labors, those rights are insecure in voices within deliberative bodies has the effect of reducing the absence of civil society and the protections it can confer. polarization and moderating their views. Diversity of ideas You might spend years cultivating a farm or building a store, thus mitigates the dangers of ideological faction. That is why only to have everything taken away or destroyed by brigands, multimember legislative bodies, elected from a variety of mobs, or warlords.
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