 Aaron Powell And I'm Trevor Burrus. Aaron Powell Joining us today is our colleague, Roger Pilon, he's vice president for legal affairs and founding director of the Center for Constituational Studies at the Caddo Institute. Welcome to Free Thoughts Roger. Roger Pilon Thank you. Good to be with you. Aaron Powell The First Amendment reads, in part, Congress shall make no law abridging the freedom of speech. So we've got those words written down. How do we know what they mean? We look at the text as a start and if that settles the question You needn't go any further, but if it doesn't then you look at structural issues and Finally you look at original understanding that is to say what the founders Had in mind or may have had in mind when they wrote those words But fortunately in that case the first amendment we already know That this right like all rights is not absolute So we know that we're going to have to look behind the language itself to the structure of the Constitution and We're going to have to place those words in the context of the larger Constitution For example, we know that you cannot use speech to for example Shout fire falsely in a crowded theater or endanger people or Insight violence or defame another person Where does that come from it comes from the background theory of rights that stands behind the Constitution And it's only when you understand that that you can put the big picture together Because the Constitution was written from the right of the people to do so Therefore in order to get clear about the Constitution itself You've got to know about those rights of the people Prior to the creation of the Constitution which takes us to state of nature theory Which is the most important thing to understand if you're going to understand the Constitution and interpret it correctly So if we have to interpret it through this framework of rights or via this framework of rights then Why bother with it and why not just work with the framework of rights? because the Constitution proceeds from that framework more specifically and then gives you a systematic account of What it is that the founding generation accomplished when they wrote and ratified the Constitution So what is the method? Originalism let's take that as a theory of interpretation for what the words mean and how we interpret Congress I'll make no law which of course now Includes states and state governments and things like that and freedom of speech what that means symbolic speech things like that But does originalism itself? Have independent normative weight in the sense that Outside of the Lockean framework of state of nature that if we interpret the words to mean this And if it happens to mean something that is contrary to libertarian theory It still has normative weight because it is in the Constitution originalism Takes its force from the background theory the Constitution is of course a compact among the people With the government through the officers that they elect When they exercise the powers that they have through the franchise to bring those officers Into the power that has given to them under the Constitution But it all begins as I said with this state of nature theory So perhaps I should take a few minutes to discuss that Because if you don't understand that and today I regret to say most people don't understand it Then you don't understand the theory of legitimacy that stands behind the Constitution Today so many people think that law is legitimate because a majority in a legislative body has past it and that of course ignores the very fundamental problem of the tyranny of the majority and The rights of the minority Moreover it ignores entirely the larger framework within Majoritarian Processes take place So let's go to state of nature theory the whole idea behind that whether it's in Hobbes or Locke or other exemplars in the 17th and 18th centuries Was to create a state of affairs or imagine a state of affairs where there is no government because your ultimate aim is to show how a Legitimate government with legitimate powers might arise You can't assume that in your argument because that would be circular it would be begging the question and so you start with a state of affairs in which Individuals have rights and then you try to figure out what those rights are from principles of pure reason Taking that reason as far as it will carry you and that will show you What rights the people have and do not have when they come out of that state of nature and Create government what rights they have to give to government in the form of powers and what powers they may not Give to government because they have no such rights to begin with So you start with state with a state of nature whereby you're dealing essentially with adult Rational able-bodied people and why do I narrow it down to that? It's because you want to get rid of the difficult cases You want to start in ethics with the easiest cases not with lifeboat cases Because there is where all the problems and the compromises The difficulties come up you start with the easy cases and try to figure out what's wrong with murder rape and robbery Why is it that we've got rights against that? Well, it turns out That you do because essentially your basic right is the right to be free and That is reducible as Locke said to property Which by which he meant lives liberties and estates by which I mean property That's an exact quote from article 123 chapter or rather paragraph 123 in the second treatise And so when you reduce all rights to property you see that a right violation is the taking of something that belongs free And clear to another we're not talking about harming people you can harm people in many other in many ways You can for example insult them you can say something that leaves them uncomfortable That doesn't amount to a right violation a right violation is the taking of something that belongs free and clear to another and Once you get clear about that then you have to discern what it is that does belong free and clear to another and Indeed I can give you a couple of examples of how that plays out If I for example own a mom-and-pop grocery store and you decide to build a supermarket across from me Then you will probably be able to buy and sell more cheaply than I can and even drive me out of business But you haven't taken anything that belongs free and clear to me because I never owned my business I owned of the goods that I have in my shop But the customers are free to come to me or to go to where the prices are cheaper and this is exactly what they may do And so that doesn't violate my rights. Here's another example Suppose I have a home with a lovely view of the bay but between my home and the bay Stands your home and you decide to build a second story on your home and there goes my view and Indeed there goes some of the value in my property. Maybe the property was worth $200,000 and now it's worth $150,000 haven't you by building that second story on your home Literally taken $50,000 from me of market value that I had in my home No, because you didn't take anything that belonged free and clear to me. I didn't own the view the view ran over Your property. I could have made that property that view mine. I could have gone to you and offered to buy The view in the form of buying an easement over your property so that you wouldn't That you wouldn't build that second story and therefore make the view mine That's the way you do it the legitimate way And so we come to the second great font of rights beyond property namely the Rights of contract there are two morally relevant ways in which people can come together either voluntarily or by force by force by committing torts that is accidents or Committing crimes against another that's an intentional tort and not not statutory crime here And so we now have the building blocks for the theory of rights we've got property on the one hand between common law strangers and we've got contracts and Through the events that I just mentioned namely contracts or torts and crimes We change the world of rights and obligations We extinguish or alienate old rights and obligations and bring into being new rights and obligations through these simple events that happen between Ordinary individuals and so we want to think of rights as relationships between people Rightholders and obligation holders there are general relationships. That is to say the rights and obligations between strangers all of which are reducible to Essentially being free being left alone what you can't do is take from another person and Therefore all of those general rights and obligations are negative We speak of general rights strictly speaking. We should speak of general obligations Because those are negative not doings And that defines the whole world of general rights and obligations and so this backdrop this creates This goes into the legitimacy of the Constitution having political power is and that's why Interpreting it with originalism No, it's too early for that question. I know but it's tied to I want to it's tied to political legitimacy Yeah, so now when you move to special Relationships special because they pertain only to the parties to the event that brought them into being Either the contracting parties or the tort visor and the victim the criminal and the victim And those are the people who have the special rights and obligations vis-a-vis each other And of course those can be either positive or negative if I injure you by driving my car into you Then I'm obligated to make you whole again. For example if I Commit a crime. I injure you intentionally not only am I required to make you whole again But you've got a right to punish me to make good on the insult to me To to the insult to you that my crime Amounted to by using you as I did by committing that crime. So there we have our two basic rights property and contract now with those we can explain the vast range of institutions everything from spot transactions to voluntary associations religious organizations charities Small businesses giant corporations and so on and so forth, but eventually we're going to run out of Principles I mean reason will take us a long way down the road We don't have to turn to values But eventually we're going to have to turn to values and there are four classic areas in which that's the case nuisance risk endangerment and risk or endangerment remedies and enforcement How much noise can I make before my right to the active use of my property? interferes or takes Your right to the quiet enjoyment of your property how much noise Particular matter can I waft into the air odors vibrations and so forth how much risk can I put you to? Obviously if your risk averse you're going to say very little if on the other hand, I'm a risk taker I'm going to say I can put you to a lot of risk There is no difference in principle between the two of us when we're talking about these nuisances I just mentioned or we're talking about risk it's a matter of degree and The fact is we're not going to agree on it because your risk averse I'm a risk taker and so forth and so we're going to have to have to turn to a third party To adjudicate this if we can't agree otherwise we go to war Remedies if I injure you what is a life or a limb worth? You're going to value it as the victim high. I'm going to value it low same thing here We're going to have to turn to a third party and then when we get to enforcement in a state of nature Let's say someone I come home, and I see my cow is missing, and I'm thinking the fence looks perfectly Intact obviously while I was away someone came and took my cow and so am I now entitled to stop everyone? I run into on the highway and Pull out the thumb screw put them on the rack to see if they're the ones who stole my cow in other words What process is due? Under a circumstance like that obviously as the victim of that loss. I may be inclined to Exceed what I'm properly entitled to do to find out who the thief was as a Possible thief or maybe not you are going to demand that I follow certain procedures To rectify the wrong that has happened to me here again You're going to need to print to turn to third parties and so we've got here certain natural springboards to the state Starting in a state of nature. We've run out of principles of reason We've reached in the point at which reasonable people can have reasonable differences About what should be done by way of fleshing out more fully this theory of rights And so it behooves us to come out of the stature Save nature into the state of civil society to work this out and that's what a Constitution is all about. We are doing this. We are moving out of the state of nature by right in the sense that We are Appealing to our fellow man. Look, we've both got these same problems here one day We could be the tort freezer the next day. We could be the victim We could disagree about the terms of a contract. We've reached you can't spell out every point in a contract And so on and so forth and so it behooves us to do that And so now we have discovered that there are legitimate grounds for coming out of the state of nature and creating some public rules That we can at least in principle all agree to put them in a constitution Such that we can order our affairs Thereafter through public law whereas before we were in a essentially private law world So I guess two questions about that story the first going back to Trevor's Question about the normative independent normative weight of originalism of the Constitution Is that it seems like then the the political authority of the Constitution and the reason we ought to approach it from this originalist standpoint is contingent upon first accepting a state of nature social contract model of the state of justice of political legitimacy, which is I mean, even among people who have dedicated their lives to studying these questions is somewhat controversial there are there are competing and You know well fleshed out and argued for alternative conceptions of these things which would seem to At least complicate the you ought to follow the Constitution in this way and you ought to obey the state for the following reasons if you don't you know if you have to have this prior set of relatively controversial political philosophy views and the second one is this gets us this would appear to get us to a Constitution or a state that then Enables the protection of these rights or protects these rights itself facilitates it but not necessarily to the Specific one that we have because there's a lot of stuff in the Constitution that is not necessarily tied to this story you know the Way that the government and the the structures are set up could be different and respect the rights just as well the tonnage Clause yeah, and then also it would seem to if if the theory of rights is prior to the state then does this mean we have a duty to Disobey or override when following this thing or when the government that it's instantiated Would cut against those rights So is our duty to rights maximization as opposed to say obedience to the state created by the Constitution? Well with the exception of that final point that you made which we can address as time goes on the Prior points that you raised as luck would have it are Redressed by the Declaration of Independence and the preamble to the Constitution The state of affairs that I just sketched out is Summarized in the first part of the second paragraph of the declaration We hold these truths to be self-evident. What are self-evident truths? They're truths. They're rooted in reason That all men are created equal They're endowed by the creator with certain inalienable rights that among these are life liberty and the pursuit of happiness Stop there. There's your moral order Jefferson hasn't said a thing yet about the political and legal order The moral order I sketched out more fully, but there it is in very summary fashion the idea of all men are created equal is an invocation of Occam's razor or a rule of parsimony the implication is That if someone wants to claim rights that are superior or more extensive than someone else The burden is upon him to do so The simpler premise is that we all start with equal rights. So that's the beginning then you spell those rights out as Life liberty and the pursuit of happiness Notice the pursuit of happiness There you have an implicit distinction between rights and values what makes you happy is not necessarily What makes me happy you like chocolate? I like vanilla you like to smoke I don't like to smoke and we could go on and on as the economists are fond of reminding us. There's no accounting for tastes There is subjectivity in values, but objectivity in rights and It's important to draw that distinction because it helps us to chart a course between two epistemological schools of thought that go all the way back to antiquity between Skeptics on one hand and dogmatists on the other The skeptics held that there are moral no moral truths or if there are we can't know them The dogmatists held that there are moral truths relating to every aspect of the human condition What you can put into your body? What sexual practices you can engage in? What the roles of women should be in society think of some of the draconian codes in various parts of the world today? The trouble with these two schools is this Skepticism gives you no morality nothing to get hold of dogmatism gives you no liberty So if you can chart a course between these two unattractive schools, you will have You will have objectivity with respect to rights Subjectivity with respect to values with respect to the rights rooted in reason Which if I were to trace the argument in another lecture to its fundamental roots Would show that we all must agree about the truth or falsity of certain right claims Basically about liberty the kind that I have just sketched out You have objectivity in rights subjectivity in values such that the conclusion that flows from that distinction is that each of us has an Objective right to pursue happiness by his own subjective values provided he respects the equal rights of others to do the same and Then when we get to the next part of the declaration The purpose of government is to secure those rights and do the fewer the things that we may have authorized it to do Now let's turn to that next part Jefferson says that to secure these rights Governments are instituted among men Deriving their just powers from the consent of the governed so notice there are first of all Live the government is twice limited by its means which must be consented to and by its ends Which are to secure its rights? And so you have the two grounds that you were speaking about earlier Aaron You have consent on one hand and you have reason on the other the idea is That we all consent in the original position To these rights which are grounded in reason and if we have rights that are not grounded in reason that are indeed illegitimate Then we have consented to something that we have no authority to do but now let me address the consent problem Which is what I think you were alluding to mainly it is a very real problem Indeed at the end of the day the anarchist carries the day as a matter of pure reason There is nothing you can say there's a poll quote for this episode Let me be clear about that I am a classical liberal okay, I am not an anarcho capitalist But we have to grant that They've holed out the person who says I think you've got a Pretty good justice system here here good police force good courts and so forth But frankly, I'd rather do it myself. I think I can do it even better and cheaper What can you say to this person when you force him out of the state of nature you are forcing him and so What this leads us to is a very important insight about power I'm going to distinguish three kinds of power okay The first great power that government has is the executive power as Locke called it in the state of nature The power to secure our rights which each of us has When we come out of the state of nature and into the state of civil society That is the first and the main power that we yield up to government and The only person who could be heard to complain about that is this holdout who would say I'd rather do it myself Okay, and this is the guy that you're going to tell look We're going to force you to come into our state of affairs or leave Let me hold off on the second and third powers for just a minute Because I'm going to go to the issue of consent right now because it's on the table The classical theory from Locke and onward through social contract has this problem at its core Obviously if you have unanimity you can overcome the problem, but rarely if ever do you have unanimity and The classical theorists understood that which is why they went to the social contract to the two-step theory of consent We all agree in the original position to be bound thereafter by the majority or some other fraction of the whole The problem with that is that it doesn't answer the question now the majority stands in the place of the king and The minority stands in the place of the people the minority by definition did not consent And the classical theorists realized that which is why they came up with the theory of tacit consent You stayed therefore you're bound. Well, that's not going to work either Because it's tatum out to the majority Telling the minority either leave or come under our rule Precisely what the majority has to justify on pain of circularity In addition to the fact that currently you have to pay $4,700 to renounce your citizenship. Yeah, for example It's a lady to make insult Absolutely. Yes, and so What you're what essentially the majority in this last state of tacit consent Is in the same position as the mugger your money or your life, right? And you say wait a minute. I've got a right to both my money and my life Well, I'm not going to allow you a right to both take your choice your money or your life The majority is saying take your choice either leave or come under our rule And so that is the sense in which this holdout even with respect to this basic right to enforce is problematic for the issue of political Legitimacy, but we overcome that simply by force and George Washington was right Government is not reason and is not eloquence. It is force. It is a forced association and we need to admit that why Because once you recognize the character of government Then it will behoove you to do as little as possible through government and as much as possible in the private sector Where it can be done in violation of the rights of no one that is a crucial point for libertarians to notice Namely that there is something to be said for the anarchist Namely that from a pure point of view. He's right But I dare say none of us except some Anarchists in the libertarian party would want to live in a state of nature where Hobbes was absolutely right Life is solitary poor nasty brutish and short look around the world today to places where Law and order break down ask yourself. Would you want to live in such lawless world worlds? I dare say most of us would prefer to stay in the good old USA Does this mean then that our Constitution the one written down by the framers in the 18th century Matches that theory Perfectly which would seem unlikely. No now we come now we come to the real world, okay? and to the question that the you raised earlier Aaron and I'll rephrase the question this way did the founders get it right and It's very important to answer that question because Not all founders got it right the founders who wrote the 1977 Brezhnev Constitution or the Cuban Constitution got it very wrong from a consideration of moral rights and obligations Fortunately our founders for the most part got it right when they gave us a limited government Oh, there were some real problems to be sure starting with slavery and it's the oblique recognition of slavery, but In the main they got it right and here we come now to this three kinds of powers that I Left dangling a few minutes ago as I said the first great power is the executive power The police power that each of us enjoys in the state of nature Which is what we yield up to government to exercise on our behalf to draw the lines Where one person's right ends and the others begins in such areas as nuisance risk Remedies and enforcement. I mean the fourth amendment Uses the word unreasonable search and seizure Probable cause those are value words. Those are not the ontological rights words Those are values words peep different people will draw the line at different places It's no accident so that so many fourth amendment cases go to them to the court because they're very fact Dependent and where you draw the line will turn on those facts now The second great power of government is the eminent domain power The power they've called the despotic power in the 17th century Why because none of us would have that power in the state of nature So what justifies it? Well, there are only two grounds You can point to to make the best case that can be made for it number one We did agree in the original position or at least those who were in the original position Did agree to give it to government in the form of the fifth amendments taking's clause and secondly It is Pareto superior as economists say at least one person is made better off by its exercise And no one has made worse off as is evidenced by the fact that the people made better off namely the People are willing to pay just compensation and the person not made worse off is the person who received just compensation Unfortunately in the real world under the law as it exists today You receive market value if you're lucky and market value is not just compensation And the clearest evidence the clearest evidence for that is that if it were you'd have your property on the market The very fact that you don't Indicates that it's more valuable to loo to you in your hands than it would fetch on the market And so that's the second great power and that's the best we can do by justifying that and it's an instrumental power That the government has to address such problems as the holdout when assembling parcels of land for such things as cable sewers telephone telegraph lines Railroads and so on and so forth The third great power is the redistributive power and this has two forms. There's first of all the the material redistributive power and Secondly the regulatory redistributive power the material redistributive power is that power that Congress exercises through the power to tax and Obviously the fairest form of that would be a head tax where everybody is treated equally. The next would be a a consumption tax may be one that is that is Graded according to one's ability to pay that treats people very unequally But then when you get to the tax code the way I have today, then we're so far into into unfairness that One wonders why we are unable to do anything about it the regulatory redistributive power here We have to be very careful to distinguish those regulations Which are necessary and proper for fleshing out theory of rights such as those that will define Where rights and the definition of speed zones in certain contexts assuming you're having public roads and so forth There too, you're gonna have regulations that flesh out our rights. What is it that trucks can do? That to ensure safety we have these beepers on the when trucks back up, you notice, right? We have these on large trucks. We don't have them on pickup trucks Why because we've drawn the line that we're it's more dangerous when you're backing up a 18-wheeler than it is when you're backing up a pickup truck and so these are the kinds of lines that are drawn now Those are the kinds of regulatory Regulations that are perfectly legitimate to flesh out the theory of rights the reg the redistributive regulation is quite another matter that is the world the world of regulations whereby one individual is Required to do something that he otherwise would not have to do or Prohibited from doing something that he would otherwise have a right to do for the benefit of another individual and that is what? burdens us Everywhere today the kind of redistributive regulation. So those are your three basic powers of government that will flow from the theory of rights that I just set out and It will help to sort out Legitimate from illegitimate powers of government to see which of these categories These various powers fall into but should we do that when we look at the Constitution itself? For example, if we're going should we analyze say the Commerce Clause? differently than something like letters of Mark and reprisal or or The post roads clause. I mean these are that's not we could do post offices. We could have people go on private This is all possible or something like the duty of tonnage I mean should each one be interpreted differently and some of them were like this is not exactly a lock-in state of nature provision of the Constitution So it should be interpreted differently than something that is okay, Trevor you raised the Commerce Clause And I'm glad you did because this is a good example of the kind of regulation that Sometimes can be justified and other times cannot as you know The Commerce Clause was written in the context of the articles of confeder confederation Under which states had erected tariffs and other protectionist measures for the benefit of local merchants and manufacturers To protect them from competition from out-of-state concerns And it was leading to the breakdown of the free flow of goods and services among the states so when they met in Philadelphia in 1787 the Framers gave Congress the power to regulate or make regular commerce among the states and in so far is The use that the Congress puts it to as in the first grade Commerce Clause case Gibbons v. Ogden in 1824 then it's a perfectly legitimate use because it negates State interference with free commerce. What was Gibbons about just to give in it was about a challenge to a Monopoly grant from the state of New York to ply the ferry trade between New York and New Jersey which of course kept other Concerns from entering the market and that and to that extent frustrated free commerce and so the court found it to be Unconstitutional because it was a usurpation of power that belonged to the federal government Now you can also have the Commerce Clause used legitimately in the areas that I pointed out before a line drawing context for example take trucks again if we had 50 different truck regular safety regulations then every time a truck went from Ohio to California and through many different jurisdictions it may have to change its load change of this or that it would be an Absolute nightmare and it would raise the cost for everybody so what you have is the use of the Commerce Clause to Ensure the free flow of goods and services among the states and we see this in other areas to take Pharmaceutical labeling labeling is a proper function of government in so far as it may be necessary And that no private concern could do that labeling for safety purposes for example Assume for the for purposes of the argument that it is the government that's doing that Well, if you have 50 different states requiring 50 different labels it makes it very difficult for a national concern More costly both for the concern and for the public to have that kind of a regime as opposed to having a Central run regime now the downside is if the central regime Engages in onerous regulation over regulation or under regulation as the case may be then you haven't protected rights on either side of that equation and so That that has to be focused upon too and here we get into issues like preemption and so on and so forth There's one of the thing that I wanted to other parts of the Constitution I said like things that are not commerce, but something that is more like I said not part of the Locke and State of nature discussion Powers that were given to the federal government that maybe were illegitimate at the beginning So well, I'll give you you point it to one in fact and namely the post office Yeah, the post office was a very important institution turns out early in our history at least they thought it was but I'm going to talk about the post office in the context of the Monopoly grant which once was for all not only first-class but packages and so forth And I'm going to do that in the context of the necessary and proper clause just by way of background for those non-constitutionalist listening to this the Constitution At its core has something called the doctrine of enumerated powers whereby Congress is given Only certain powers the rest belonging to the states or to the people never having been given to either level of government Among those powers is the power to create a post office Not among those powers is the power to give it a monopoly grant that was arguably derived from the last of Congress's enumerated powers the necessary and proper clause which affords Congress the power to execute the enumerated powers the other enumerated powers or pursue the other enumerated ends by Laws that are necessary and proper for that end in other words the 18th power is an Instrumental power giving Congress the means to carry out its other ends the problem in this case is that the monopoly grant is neither necessary nor proper It's not necessary because you can have private delivery of mail and Packages indeed before the monopoly was removed for packages. We had the monopoly for packages that Has been supplanted by UPS FedEx and so forth nor is it proper because it stands in the way of the private right to deliver mail and packages and so the Monopoly grant for the post office fails on both of those counts But at some point in this discussion I should step back and show how it is that by and large the Constitution does reflect the theory of rights That I that I set forth earlier on so would you like me to address that please? Yes, okay? We start with the preamble First of all the picture that emerged from the Declaration was one as I said earlier in which individuals are Free to pursue happiness as they think best by their own subjective values as they work their way through life provided they respect the rights of others to do the same and We create government as the Declaration says to secure those rights and as the Constitution makes clear to Pursue those few other things that we have authorized Congress to do You look to the preamble and you see that it puts us right back in state of nature theory Just as the Declaration did in that first part before it turns to Government we the people for the purposes listed do ordain and establish this Constitution in other words All power starts with the people They give the they create the government they give it whatever powers it has the government does not give the people their rights They already have their rights their natural rights the exercise of which Brings the government into being so the people create and empower the government the problem Madison had When he thought about how to construct the government the federal government was how to do so in a way that Enabled it enough power To secure our rights and do the few other things that we wanted it to do But it was not so extensive or powerful To violate rights in the process and he did that through the checks and the balances were all familiar with He started for example with the division of powers between the federal and state governments with most power left for the states The separation of powers between the three branches each branch defined functionally the provision for a bicameral legislature With each house constituted differently the provision for a unitary executive with the Subordinate offices reportable to and Under the direction of The president himself or herself the provision for veto on the part of the executive and the provision for Congress to override it by a supermajority the provision for an Independent judiciary a novel institution at that point in time To check the political branches and later on the states to make sure that they are conforming to the strictures Set forth in the Constitution the provision for periodic elections Mainly not to change the course of government But to fill the offices set forth in the document because the course of government and the limits upon it are set forth already in the government and Finally the most important Restraint of all took the name of the doctrine of enumerated powers Which I mentioned a moment ago and I can state it no more simply than this if you want to limit power Don't give it in the first place and you see the doctrine enumerated powers in the very first sentence of article 1 section 1 all Legislative power here in granted shall be vested in a Congress by implication not all power was here in granted Again, you look at article 1 section 8 and you will see that Congress has only 18 Enumerated legislative powers and then you look at the 10th Amendment the last Documentary evidence in the founding period and you see this doctrine spelled out expressly the powers Not delegated to the United States by the Constitution nor prohibited to it by the states are reserved to the states respectively or to the people in other words the Constitution establishes a government of delegated Enumerated and thus limited powers and then you look at the 9th Amendment and you see the obverse of the 10th The 9th speaks of powers Excuse me of rights. Where's the 10th spoke of powers the 9th reads the enumeration the Constitution of certain rights shall not be Construed to deny or disparage others retained by the people Notice retained by the people you cannot retain what you don't first have to be retained obviously that Amendment was referring to the natural rights that we never gave up when we left the state of nature and Entered into civil society you see why it's so important to understand state of nature theory that gives you your theory of legitimacy such as it does and it explains the relationship in powers in the 10th Amendment and rights in the 9th Amendment in Indeed it recapitulates The founding principles set forth in the declaration and that's why the 9th and 10th amendments are so important They bring us back to the founding principles that sometimes when I discuss this and people often joke that the Constitution needs a And we really mean it cause and I often joke today. It actually does. It's called the 9th and 10th Amendment That's what it is. It just restates everything that came before in shorter and prettier language But I want to push back a little bit because you you you said that within this theory you would authorize things like Interstate trucking regulations or labeling regulations things like this and we start to we so we start to see some agencies emerge that do these kind of things but of course They aren't very well constrained in their powers not just the agency even that power It's not clear what actually to draw that line what actually is an interstate commerce regulation It becomes a difficult line drawing endeavor and it might become something where you consume the liberty of the people because that line Isn't drawn by the government itself, which is of course what the anti-federalists said They would sit here and agree with you like these are as we do want to protect these rights But you've created a government that we foresee especially through the necessary and proper clause Will consume the freedoms of the people because they will not be can they will not be able to constrain itself to the proper Role of government and I've been reading them the the more obscurity federal's papers recently and yes They are Amazingly prophetic in many ways about how this would be used because people so in that regard they were correct and so Would you have signed the Constitution if you were sitting there? Because you would you have hoped to foreseen that the government wouldn't be able to constrain itself even though it was set up As such a way it had powers that were not going to be constrained by itself Well, we had a pretty good run for a hundred and fifty year We did but maybe one reason for that is that they didn't we had the slavery issue for the whole antebellum part where they didn't really do broad nationwide Legislation because it was hard to do that and then we had the war and with the post war period as soon as we kind of get Take her head out of the sand and we're in the gilded age They start they start coming in and then they and then it takes only 50 years to the New Deal till it's pretty much gone Yes, and Yet During that first hundred and fifty years or at least that first hundred years until we get to the Progressive era there was spirited debate in the political branches about the Constitution Madison in 1794 Faced a welfare bill in Congress a bill to provide relief From refugees fleeing from San Domingo to Philadelphia and Baltimore He rose to say I cannot undertake to lay my finger on that passage of the Constitution That authorizes us to spend the money of the taxpayers on this humanitarian activity That's a paraphrase roughly of what he said on the floor of the house That's a mark of how seriously early on they took the Constitution two years later Giles his colleague from Virginia made a similar point When a bill was introduced to relief for relief of people who had suffered from a fire in Charleston, South Carolina Our duty is to uphold the Constitution and the oath we took to do so. He said We see these debates in there's latest 1887 President Cleveland, this is a century later President Cleveland vetoes a bill appropriating ten thousand dollars Imagine ten thousand dollars in 1887. Yes To for the relief of farmers suffering from a drought in Texas He said I can find no authorization for this Expenditure under the Constitution when was the last time you heard anybody in Congress or in the White House Make a statement. He's not Ron Paul Ron Paul. Well, yes, and and my point is that The Constitution is parchment as is often said and it is not self-executing Eventually, you're going to have to have people who take it seriously and take their oath of office seriously and Do so in fact and When the moral character of our members of Congress breaks down, then we're in serious trouble Thank you for listening if you enjoyed today's show Please take a moment to rate us on iTunes pre thoughts is produced by Evan banks and Mark McDaniel to learn more find us on the web at www.libertarianism.org