Limited Powers to Govern
Tibor R. Machan
One of the most ridiculous claims about government was made by Justice
Oliver Wendell Holmes, Jr., in his famous?or, by my count infamous?Lochner
dissent. He basically said that unless what government did necessarily
contradicted the U. S. Constitution, it had the authority to do it. That
means almost ulimited government.
Imagine this. You go to the dentist and take your seat for having your
teeth cleaned. Instead of simply proceeding with his work, the dentist
decides to extract a bunch of perfectly healthy teeth. In addition, he
fondles you a bit, while you are knocked out asleep. When you awake and
realize all this abuse, you naturally protest, even take the man to court.
His defense, however, is informed by Justice Holmes? wisdom and he claims
that since what he did wasn?t necessarily, as a matter of pure logic,
precluded by his being a
dentist?after all dentists can and do often extract teeth and, moreover,
they are humans and so they can and do often fondle other people?there was
nothing wrong with what he did to you.
Clearly this defense is nonsense. Yet that is just what has been the
judicial excuse for governmental overreach of power ever since Holmes?
Lochner dissent became famous. And in a certain tradition of politics this
makes sense, namely, in the sense associated with monarchy and other forms
of top down rule whereby governments are taken to be in charge of
everything. That indeed used to be the idea?the king or emperoro or tsar
owned the realm and
could, of course, rule it at his or her heart?s content. That?s what is
by ownership. You own something, so it is yours to rule. If you are the
king and own the realm, you get to rule it.
The revolutionary idea of the American founders, following the innovative
new political theory that had been developed by classical
liberals?starting, slowly, with Hobbes and Spinoza, moving on faster with
Hume, Smith, and others?went against all this. Instead of seeing the king
as the owner?and therefore, ruler?of the realm, government started to be
viewed as an agent for certain limited purposes. People themselves, the
individuals who lived within a realm, began to be viewed as the (self)
with government as one of the employees to do certain jobs. Like the
dentist, doctor, plumber, dress designer, barber and other professional
people hired to do certain specific (but no other) jobs for them,
government was now understood as in charge of certain specific work the
people who hired it wanted done.
One can fruitfully view a constitution, then, as a kind of job
description and employment contract. It spells out what government may do.
Everything else it may not do. If it does do something else, it is engaged
not unlike that dentist who, instead of doing the cleaning job for which
she was hired, decided to pull a bunch of your healthy teeth and even
Holmes and his ilk completely perverted the new idea of government as the
servant of the people. He and his followers?and there are many now who
views for granted and justify the inordinate scope of governmental powers
along lines he rationalized?are the reactionaries among political and legal
Yet just the other day when I was attending a faculty meeting, one of my
colleagues made the offhand point that there are two factions among the
faculty, conservatives and progressives. You know what makes a
progressive? A progressive is one who wants government to butt into
everything in society with its coercive power so as to promote some goal
certain people in society think will advance some important purpose.
It turns out, however, that this is just what the
theorists thought is the king?s job. Some conservatives share this view,
although when so called progressives in American politics call others
conservatives, they have in mind that these folks wish to conserve the
limitations the American founders and framers had placed on government.
What was to be novel in the American political system is that the
government was to be like any other professional and do only its job,
nothing else, the one it was hired to do. It simply has no authority to do
anything else. Now that was progressive!