A Constitution Rich in Costly Mistakes

After reading John’s post about the Constitution’s greatest error, I have decided to put the issue of slavery aside as I respond to Michael Tee’s prompt which asks: how would John and I change the document knowing what we know today? I will discuss other changes and mistakes instead.

My first change is related to slavery indirectly.  It is that the “foreign” commerce clause was intended to allow the imposition of tariff barriers against foreign trade, which is a mistake even in the best of circumstances. It also resulted in many difficult battles where Northern manufacturers wanted to keep competitive goods from overseas out of the country.

Second, the original Constitution, even with the Bill of Rights, did too little to protect individuals against expropriation by state governments.  The closest clause that served that purpose was the contracts clause, which in the end lands little traction. That clause only extended its protection to contracts from retroactive invalidation.

A stronger system of property rights, such as that ushered in by the Privileges or Immunities clause of the Fourteenth Amendment, would have helped.  Indeed it was not only property rights that were hurt, but religion and speech rights too, as each was subject to serious limitations by the states.

Third, the Commerce Clause, in its original sense, did not have the proper negative power—i.e. to block states from interfering with the free flow of goods and services across state lines. That power only came later, after interpretation.  It should have been there from the start.

Fourth, the early decision to create only optional lower federal courts in order to limit the number of appeals to the Supreme Court from within the federal court system was a mistake, as was the failure to provide any clear way by which state court decisions could be reviewed by the Supreme Court.  To be sure, these policies were initially instituted with the intention of giving states power against the federal government.  In the end, though, they caused real uncertainty. Eventually, these problems were cured by interpretation.

Fifth, the system for choosing the president and vice president was a mess. Part of that was undone by the Twelfth Amendment, but part of it was not. The Electoral College was supposed to be a deliberative body, but fortunately, it is now a device for counting electoral votes.

In sum, there were many mistakes in the original Constitution.  Some were corrected by amendment, some by interpretation, and some by war.  But lest one be too harsh, think of all the other constitutions whose embedded defects were far greater than our own.  The key to our constitutional success was the heavy influence that classical liberal theories had in its drafting and early implementation.  Be thankful for large favors.

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JOHN YOO > The Constitution’s Greatest Error

  1. Bryan G. Stephens

    The drafting US Constitution is one of the biggest events in history. I cannot imagine any group of leaders today drafting anything even close. I am will to give they had a few mistakes.

    Would you really say that Slavery was not a mistake? It was a known fault stuck in there. They knew it at them time, didn’t they?

  2. ManBearPig
    Richard Epstein:  The key to our constitutional success was the heavy influence that classical liberal theories had in its drafting and early implementation. 

    Professor Epstein, I have very strong Libertarian leanings, and am often called out by my progressive friends when I quote the Constitution, or when I cite Adam Smith. They like to believe that I treat the founding documents like the pope treats the bible (I think I actually have more reverence!).

    One particular progressive friend recently told me that libertarianism finds its roots in the enlightenment, and she claims that enlightenment thought has been disproven. She cited some psych study or something about people not feeling “free”…

    Is that the craziest thing you’ve ever heard?

  3. Charles Gordon

    The Founding Fathers’ most overlooked protection reflects what they thought was least in danger.

    How wrong they were about government respect for private property.

  4. anon_academic
    Richard Epstein:

    My first change is related to slavery indirectly.  It is that the “foreign” commerce clause was intended to allow the imposition of tariff barriers against foreign trade, which is a mistake even in the best of circumstances. It also resulted in many difficult battles where Northern manufacturers wanted to keep competitive goods from overseas out of the country.

    Tariffs are currently used mostly for protectionism and so we interpret that into the past but this is somewhat anachronistic projected back into the late 18th and early 19th century. It’s true that there was a protectionist impulse, which is why the Federalists and Whigs supported them as opposed by the Democrats, but that was only part of the story. The states of the early modern era simply lacked the power to collect income taxes or value-added taxes — even excise taxes almost started a second revolution in 1791. If you’re a weak state with a small and finite number of revenue officers, you’re much better off posting them on the docks than trying to invent a VAT.

  5. Sisyphus

    Yes. Historically England, at least, relied heavily on import tariffs to fund the central government from at least the 14th Century. 

  6. Paul A. Rahe
    C
    anon_academic

    Richard Epstein:

    Tariffs are currently used mostly for protectionism and so we interpret that into the past but this is somewhat anachronistic projected back into the late 18th and early 19th century. It’s true that there was a protectionist impulse, which is why the Federalists and Whigs supported them as opposed by the Democrats, but that was only part of the story. The states of the early modern era simply lacked the power to collect income taxes or value-added taxes — even excise taxes almost started a second revolution in 1791. If you’re a weak state with a small and finite number of revenue officers, you’re much better off posting them on the docks than trying to invent a VAT. · Dec 22 at 2:49pm

    The tariff provision also gave the federal government leverage in negotiations with foreign powers over the tariffs they imposed.

  7. Paul A. Rahe
    C

    There is also a political side to the tariff question — which leads me to think Richard wrong on this matter. The protectionist policies favored in some measure by Alexander Hamilton and the Federalists and by Henry Clay and the Whigs were, indeed, aimed at nurturing industrialization. But their purpose was not first and foremost economic. Both were antislavery. Both feared that slavery would eventually tear the Union apart. And both hoped to head that off by creating a national market uniting the North and the South (and the West) by economic bonds so strong that splitting the Union would be unthinkable to both sides. I explored this vis-a-vis Hamilton in the third volume of Republics Ancient and Modern. Others have discussed in detail the logic of Henry Clay’s “American System.” In economic matters, Abraham Lincoln and the Republicans were the heirs of Hamilton and Clay.