America’s Other Constitution

On this Constitution Day 2022, I would, if I could, smack upside the head the first person who touted the notion that America’s written Constitution is better than Great Britain’s unwritten constitution. Why? Because America also had an unwritten constitution, one as important as its written counterpart, that unfortunately faded from view until its eventual quiet murder by Progressives and New Dealers. The key question Americans face today is whether they have the will to revivify both their constitutions before it is too late.

When Americans speak of “The Constitution,” they refer to the document written in Philadelphia in 1787 and subsequently amended. They remain aware of the existence of state constitutions but rightly understand that they can be no more illiberal than the federal document allows, as interpreted by the US Supreme Court (SCOTUS), the final arbiter of the constitutionality of statutes and government policies.

Long forgotten, though alluded to in The Constitution’s all-important Preamble, the Ninth Amendment, the Declaration of Independence, and other founding documents, is America’s second, unwritten constitution. It consists of natural rights not explicitly enumerated in the Constitution, natural rights so fundamental to liberty that the Framers hoped that no republican government would dare to erode or question them. They were wrong.

Although vibrant and well-understood in the eighteenth century, America’s unwritten constitution slowly eroded and disappeared entirely by the early twentieth century. The degradation of America’s unwritten natural rights constitution made the New Deal possible and late-New-Deal jurisprudence wiped away its last vestiges. In Wickard (1942), for example, SCOTUS unanimously upheld the federal government’s power to prevent a farmer in Ohio from planting wheat to feed his own family.

Fear that some of its key components might one day be challenged led to the unwritten constitution’s partial codification and ratification as the Bill of Rights. Today, many of those first ten amendments to the Constitution are being ignored, or at least challenged, despite clear mandates that they “shall not be infringed.” But they remain more palpable than even more fundamental rights that have almost disappeared.

To fully explore the contents of the unwritten constitution would require a book-length treatment, and one that takes natural rights much more seriously than Christopher G. Tiedeman’s 1890 The Unwritten Constitution of the United States: A Philosophical Inquiry into the Fundamentals of American Constitutional Law. Tiedeman reduced natural law to “freedom from all legal restraint that is not needed to prevent injury to others; a right to do any thing that does not involve a trespass or injury to others.” But simply recognizing a “freedom from needless restraint” draws most government regulation into question and reifies the spirit of the unwritten constitution, including three crucial natural rights:

  1. Self-ownership shall not be infringed, except by virtue of status of birth mother, capture in war, or due conviction of a crime. The Thirteenth Amendment wiped out the first two exceptions, which had always been contested. Self-ownership renders Americans free from slavery, economically and politically. The latter implies full bodily autonomy, even during emergencies.
  2. Pursuit of an occupation of one’s own choosing, on the terms of one’s own choosing, shall not be infringed. This would preclude trivial occupational licensing laws, all minimum wage laws, and the use of state power to favor some individuals or businesses over others, even during emergencies.
  3. Reliance on markets and other voluntary efforts, with state power applied to solve perceived social problems only after voluntary means have been tried and found wanting. As my forthcoming book Liberty Lost (AIER, 2022) shows, early Americans equated voluntary association with political liberty. Instead of immediately asking what the government could do, they tackled social problems themselves, voluntarily through nonprofit organizations. And they did so even during emergencies, including the Civil War.

“In these days of great social unrest,” Tiedeman explained in 1890, “we applaud the disposition of the courts to seize hold of these general declarations of rights as an authority for them to lay their interdict upon all legislative acts which interfere with the individual’s natural rights, even though these acts do not violate any specific or special provision of the [written] Constitution.”

But even before Tiedeman wrote, high courts were already rejecting the notion that they should look to “principles outside of the Constitution, under which such [overreaching] legislation may be condemned.” They did so by wrapping the precepts of the unwritten constitution into constitutional rights like due process, broadly construed. In the 1877 case Bertholf v. O’Reilly (74 N.Y. 509), for example, the New York Court of Appeals decided that “the right to life includes the right of the individual to his body in its completeness and without dismemberment; the right to liberty, the right to exercise his faculties and to follow a lawful avocation for the support of life [emphases added].” 

The wrapping tactic allowed jurists to cite text to justify their decisions, which at first continued in line with the views of the Founders. In the above-referenced case, for example, the Court clearly stated that taxation had to be for “a public purpose,” so it was clearly unconstitutional for governments to transfer property from one citizen to another. When Progressives and New Dealers later managed to twist key concepts like public purpose, public health, and due process, however, the increasingly forgotten unwritten constitution was no longer strong enough to protect fundamental natural rights from government encroachment. 

With jurisprudence no longer anchored to fundamental precepts, one successful Progressive incursion simply served as precedent for the next, which allowed another, and yet another in a seemingly never ending stream. A century later, the nation’s authoritarian government would be unrecognizable to the Framers and Founders. Furtive interference with free speech, unscientific climate, mask, vaccine, and shutdown mandates, massive redistributions of wealth to cronies foreign and domestic, the flaunting of disfavored-but-unrepealed laws, and other unpunished abominations were the stuff of their nightmares.

The unwritten constitution remains a dead letter, and the Bill of Rights, even the once-sacrosanct First Amendment, suffers daily assault. I fear that someday soon Constitution Day will have to be folded into Memorial Day. To prevent that horrible outcome, Americans must strenuously reassert their natural right to be left to do as they wish unless their behaviors demonstrably injure other Americans. Even then they should be allowed to pursue voluntary solutions before governments may constitutionally intercede. 

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