A Government Limited by the People Was Hard Won But Easily Lost: A Conversation with Robert Black
The philosophical origins of limited government were in Europe but they reached full fruition in America
Today, we are delighted to bring you the full video and lightly edited transcript of a brilliant conversation between Samantha Hancox-Li of Liberal Currents—a sprightly, interesting publication that you should subscribe to—and constitutional lawyer Robert Black on the historical origins and present crisis of limited government in America. They cover the historical exigencies and the philosophical breakthroughs that caused an idea that emerged in Europe to be planted in America, where the soil for it has become suddenly inhospitable.
We hope you enjoy it as much as we did.
Samantha Hancox-Li: Today, I want to talk about limited government, a phrase you often see thrown around in connection with liberal democracy, with modern liberal theory. I want to talk about what it means and where it comes from and why it’s important, which I think is especially relevant as we live through what very much feels like an unprecedented assault on the idea of limited government in America. To help me talk about these questions, I’m very excited to have Robert Black on the podcast. Robert is a constitutional scholar, and the author of the Evening Constitutional.
Robert, thanks so much for coming on. To start: What is limited government?
Robert Black: These questions basically all go back to the 17th century. To some extent, you can think of it as a conversation between John Locke and Thomas Hobbes, the two great progenitors of the social contract theory. The idea of limited government is something that emerges out of Locke’s idea of the social contract in particular. Before these ideas start coalescing, there isn’t really any coherent concept of limited government. There are kings, and in the nature of being king, you can basically do whatever you want. The idea that there are things that the government cannot rightfully do gets invented, basically as part and parcel of social contract theory, and in particular the liberal version of social contract theory, which we associate with Locke.
In slightly more concrete terms, you see it in constitutional bills of rights. The First Amendment says Congress shall make no law respecting an establishment of religion. That’s a limit on what Congress can do. It is, in theory, a legal limit on what Congress can do. Our Constitution has a bunch of these limits. and most modern constitutions that have been adopted in the wake of the Second World War have also had limits like this on what the government can do. In a lot of ways, the experience of that war convinced people that this was a necessary thing.
Hancox-Li: I want to get back to Locke, and absolute monarchy, and the historical roots of all this. But to put it in context for everyone, I said that we’re living through an unprecedented assault on the idea of limited government. Do you think that’s true? And if so, what are the big symptoms here?
Black: Yeah, I do. A thing that I found myself saying a lot the last eight, nine months is that it feels like the Madisonian constitutional order—James Madison, the key architect of the U.S. Constitution, and in many ways, one of the key theorists of American limited government, which we’ll get to—is in the process of being supplanted by a Schmittian order. Carl Schmitt is essentially the core philosopher of the Third Reich, the original Nazis. Schmitt’s theories are all about unlimited, arbitrary power. Schmitt thinks there must exist, somewhere, a power that cannot be constrained by law. This is the famous line, “Sovereign is he who decides on the exception.” It’s this idea that at some point you run into a question that the law cannot answer. And whoever is in charge of answering that question is ultimately the sovereign and has effectively unlimited power.
This is a deeply un-American idea in a very literal sense. Our entire constitutional history, our entire constitutional and political tradition, is all about rejecting this idea. Watch the way that people talk about Donald Trump, the way that people react to Trump—this year in particular, less in his first term. Essentially, he has been imbued with the powers of a Schmittian dictator. Even Schmitt agrees that the sovereignty belongs originally to the people, but he says there’s this transcendental moment in which the people imbue their sovereign power in this single figure: the dictator. And that’s how people talk about and react to Donald Trump this year, to an astonishing degree, given how completely outside the bounds of anything in American legal and political culture this is.
You read these New York Times headlines about, “It’s unclear if Trump has the authority to murder random civilians off the coast of Venezuela because he feels like it.” No, it’s not unclear at all. There’s a law that says that he can’t. “It’s unclear if he can put his face on the money despite not being dead.” Well, no, it’s not unclear. There’s a law that says it.
But what’s become unclear at this point is, does the law limit Donald Trump? Is Donald Trump forbidden from doing things just for the puny little reason that they’re illegal? I think 2024, and to some extent the whole Biden presidency, was a contest over this question. And Trump’s basically winning right now. He’s at least threatening to win in a way that’s really scary. And yes, I think completely unprecedented.
Hancox-Li: It’s interesting you brought up Schmitt and this idea. The Führer, in Nazi ideology, was meant to be like the avatar of the folk; he had a kind of democratic legitimacy by embodying the people’s will. But he wasn’t actually constrained by democratic elections. So there’s this mismatch between the institutional and the ideological. People talk about Trump in very much the same way. I think that’s a really interesting comparison.
But I also want to go back farther. In some ways, it sounds like Schmitt is recreating some of these ideas that the monarchists had.
Black: Absolutely. Recreating them for a democratic age, you could say.
Hancox-Li: That’s right. In a democratic age, an age of mass politics. There are a number of theorists of absolute monarchy. One of the ones that I know better is Robert Filmer, the author of Patriarcha.
Black: And is the antagonist of John Locke’s treatises of government.
Hancox-Li: Right. He says that the king owns the state like a father owns his family. The parallels are striking these days. (There’s a lot of gender going on here!)
Black: Oh, yes. It is genuinely fascinating, to your perennial obsessions, that this is literally the argument that John Locke’s great antagonist is making: everything is gender.
Hancox-Li: Yes. It turns out I didn’t have to make that up. They just said it. They said it was all gender themselves. But these are societies that have laws. They have legal systems. They have courts. There is the administration of justice, after a certain fashion. But there’s this vision of law as a tool in the king’s hands. The law doesn’t constrain the king; the king uses law to constrain other people. And so the great problem for limited government is, how do you bind the king’s hands?
Black: This is, philosophically speaking, the problem. I just want a brief digression because, as you were saying, the concept of the rule of law is older than the concept of limited government. The concept of the rule of law doesn’t really take root immediately, but you can trace it back to some of these judicial reforms in England by King Henry II in the late 12th century. Nobody has an idea of limited government at this point, but this is when the idea of a professional judiciary is starting to emerge. Before this, judgment is made by the king personally. This is a fact that’s sort of hiding in plain sight, in the word “court.” Why do we call judicial institutions “courts”? Well, originally it was literally “king’s court,” curia regis. People would go to the king’s court and ask the king for judgment. And the king, in dispensing judgment, was exercising this arbitrary power that is the nature of kingship. Kings can just do whatever they want. So you go to the king, you say, “I’m having this dispute with my neighbor about this piece of property,” or whatever it is. “Here’s why I think I deserve to win.” And if you convince the king, then the king writes out a writ that says, “Give this guy the property.”
“It feels like the Madisonian constitutional order … is in the process of being supplanted by a Schmittian order. Schmitt’s theories are all about unlimited, arbitrary power. Schmitt thinks there must exist, somewhere, a power that cannot be constrained by law. This is the famous line, ‘Sovereign is he who decides on the exception.’ It’s this idea that at some point you run into a question that the law cannot answer. And whoever is in charge of answering that question is ultimately the sovereign and has effectively unlimited power. This is a deeply un-American idea in a very literal sense. Our entire constitutional history, our entire constitutional and political tradition, is all about rejecting this idea.” — Robert Black
This is not fundamentally any different from absolute arbitrary authority. For various reasons, many of which are practical, Henry II creates all of these professional judicial institutions. Over the next several centuries they coalesce more concretely, more stably. A thing that happens when you have people who are not the king’s own person making these judgments—even though they are making these judgments in the king’s name using power that the king gave them, which is by its nature the same unlimited power—people start getting a notion that it would be nice if the judges didn’t just apply their own whim to decide the present case. Because, in theory, that’s something that the king has a right to do. And the king isn’t literally in the room. The king has a right to rule according to whim. The judge has the same power that the king has, but they don’t have the king’s whims in the room with them. And so this idea that the way you’re supposed to decide a case, if you’re one of these professional judges, is by saying, “Well, we did the same thing in this other case that was similar,” begins to emerge.
From this, you get all of these rule of law notions about reasoned decision making, consistency, treat like cases alike. The system of judicial precedent emerges. Despite the fact that, conceptually, this is still like the arbitrary power of an absolute monarch. But this idea that, although the king has this arbitrary absolute power, he, through his judges, is supposed to rule according to law with this kind of consistency, that emerges way before the idea of anything like actual limited government—which is kind of interesting because this rule of law stuff ends up becoming absolutely essential for doing limited government. But that wasn’t the context in which it emerged.
Hancox-Li: I think it’s important to recognize some of the historical contingency lying behind what has come down to us as “the liberal package.” How it came to be is a very interesting question, full of some strange twists and turns and accidents.
We have this idea: we don’t just want the whims of a lot of different people pretending to be one person. We want a clear and consistent set of principles. They’re articulated, they’re known, they’re intelligible. The rulings of different judges are reliable.
But there’s still another step from the idea of clear and consistent legal principles to binding the king personally, that the law starts to stand above the king. And this emerges in the context of English history over a series of well-known struggles and events. Could you tell us a little bit about that?
Black: Yeah, you have all of these rule of law norms. It’s still the case that the king can in principle upend any of this at any moment if he wants to. He just doesn’t, because he’s a nice guy and he’s busy hunting or whatever. That’s the status quo ante. Then, in the 17th century, we get this series of conflicts where Charles I, who takes the throne in the 1620s, gets sick of having to consult with Parliament for everything that he does.
Parliament is another one of these cases, in its origins, it is just the king’s council. It’s just, again, absolute monarch, unlimited arbitrary power. But he needs to learn something about the realm so that he can know how to impose his taxes; he needs to know where the money is so he can know how to tax it. So, he summons a Parliament from across the realm to help advise him on how to do that. A couple centuries pass, and this idea that the king has an obligation to rule through Parliament, at least in regard to certain matters like taxes—internal taxes specifically—begins to get kind of entrenched.
Charles I says, “This is actually kind of a drag. I can get money my own ways through various arcane financial devices that are purely at the king’s discretion. I don’t need to call Parliament.” And he doesn’t call a Parliament for years and years. This is the period of so-called personal rule. Finally, in 1642, when his ability to fund his various activities—largely wars, which is the main government expense in these days—runs out, he has to call Parliament now.
It turns out Parliament is not best pleased. And this leads to what we call the English Civil War. Parliament immediately makes a bunch of assertions of its own rights, privileges, prerogatives, which of course the king can’t accept. Eventually this leads to literal civil war: partisans of the king, partisans of Parliament, field armies, they meet in the field. As the Monty Python song will tell you, the king loses these battles, and therefore finds himself in a position to be tried by the Parliament—the Rump Parliament at this point, which has been purged of supporters of the king for tyranny—and he gets his head cut off. This is an earth-shattering event. The idea of divine right of kings—which is what our friend Filmer is all about—isn’t very consistent with this representative assembly, that was summoned as a king’s council in its origins, deciding, “Hey, dude, you’re a tyrant” and cutting your head off.
The next 40 years are spent, in a way, consolidating the implications of this. You have this period where Oliver Cromwell, the leader of the parliamentary faction, effectively makes himself king in the aftermath. He doesn’t call it that—he calls it, “Lord Protector.” But it’s effectively king. And then he dies, and everyone’s a bit adrift. This whole project of setting up a commonwealth—the word they use for it—is sort of running aground. In 1660, they say, “What if we just had an actual king again? What if we invite the son of the previous king, Charles II, to be king again?”
But there’s an interesting wrinkle, which is that if Parliament is inviting somebody to become king, it doesn’t seem like the idea that their kingship rests upon divine right—divine anointment, they have a personal right to it, in this Filmer way—is what’s going on here. Parliament was originally the king’s council, but now it’s Parliament deciding they want to have a king. Something has changed. Charles II, and especially James II who succeeds him, spend a few decades chafing against the implications of the restoration, that it turns out that at this point you, the king, are a creature of Parliament rather than the other way around.
This culminates in what we call the Glorious Revolution of 1689, where James II, having antagonized his entire country, gets deposed by William of Orange, who comes over from the Netherlands on a bunch of ships. One of the people on those ships is John Locke, who has been in exile this whole time writing up his theory of government, which in the end becomes basically the official philosophical justification for the Glorious Revolution and really, ultimately, the English state in the wake of the Glorious Revolution.
Hancox-Li: This is a really interesting history, and one of the things that I think is so interesting is that it starts off with a conflict over finance. It’s primarily about the king and Parliament wrestling over who controls money, because the king wants to fight all these wars, the wars are very expensive, he wants to raise more money, and he can do it for a little while. But that’s the great question that comes up a lot in this period: Who is controlling taxing and spending? But also the question of debt comes up.
One of the ways to extract money from people is to be the king and ask them for a loan. You say, “I promise, I’ll pay you back.” ... and then you take all their money, you spend it on a war somewhere, you have no money afterwards. And they say, “I would like my money back.” And you say, “I’m the king. No money for you.”
Black: “No money for you, I have sovereign immunity from being sued to collect the debt.” Yeah, turns out you are out of luck.
Hancox-Li: One of the things that is really interesting and paradoxical about what we see happening here is that it starts off as a conflict over finance. The king wants more money. Eventually, Parliament wins the battle: they slap down the kings repeatedly and eventually establish parliamentary supremacy. You have limited government. And the net effect of this is that kings get way more money for war—or the state, effectively, gets way more money for war. And this is one of the reasons that the English are able to win the Napoleonic Wars. They are able to take out enormous loans to finance their fleets, their blockades, the many different armies that are fighting on the continent. These are all paid by English debt, basically. And because the state is constrained by law, people are willing to lend to the state on very favorable terms.
“I very much have come to the belief that limited government and democracy both need each other at an extremely deep and intimate level.” — Robert Black
You can see the contrast with other monarchs on the continent who are nominally unlimited. They can do whatever they want, but they can’t get people to loan them money at a reasonable interest rate, because everyone knows they’re not really good for it. So, your interest rate goes up and up. Whereas the English state is far more constrained, and yet that also gives them far more power.
Black: Yeah, and you see this today with U.S. government debt, because it’s the safest investment in the world. You know for certain that the government is good for it. The U.S. government can borrow on the best terms of anybody in the world, until they mess it up.
What we think of as limited government—legal limits on the scope of the legislative power in particular—still doesn’t exist in Britain as of the time of the Glorious Revolution, and indeed doesn’t really exist in Britain today. As you were saying, parliamentary supremacy in Britain—they have the idea that Parliament has theoretically unlimited power and can do anything it wants.
But you do have these “rule of law” notions. And one thing about rule of law that is a big part of the historical story is that it’s very good if you are a merchant sort. It’s very good for a commercial society to have the rule of law, to have this predictability of business transactions, that you can carry on your business affairs against the backdrop of predictable legal rules. And if you’re doing business with the state, that includes predictable legal rules that bind the state.
I read a book once by a law professor named Jed Rubenfeld, who is kind of a character and has various controversies in his own way. But this book was really interesting. It’s called Freedom and Time. One of the points he’s making is that there are a whole bunch of situations in which it is to a person’s benefit—in a way it increases a person’s sphere of action—to be able to bind themselves in a way that they will not be able to get out of later. The example that you’re giving is exactly one of those. “I need money to fight my wars. People have cottoned on to this thing I keep doing, of saying, ‘Oh, yeah, you lent me that money, but I’m the king, so you can’t actually get it back.’ They won’t lend me any more money. I’m going to lose my war if I don’t fix this somehow. I need to credibly commit. I need to irrevocably commit to, ‘No, I’m actually going to pay back.’” These rule of law institutions help with that a lot.
Having that kind of democratic taxing legitimacy helps with that, too. This is a big part of the logic of the U.S. Constitution: we have these soldiers, they need paying. We have these debts, they need paying. We don’t have money. We don’t have money because the Articles of Confederation government doesn’t have a taxing power. We need the federal government to have the ability to tax people, in order for it to have that power under these, again, old principles of the English constitution that really predate anything like limited government in the modern form. You can’t tax somebody without their consent. So, we need to tax people—that means we need them to be represented in the government directly, which they’re also not under the Articles. Akhil Amar, one of my teachers in law school, says teasing out this logic gets you 95% of the structure of the 1789 Constitution. Basically, we need taxes in order to not lose all our wars; therefore, we need to have representative government.
Hancox-Li: Schmitt says the sovereign is whoever decides on the exception. In the English system after the Glorious Revolution, who decides on the exception? It’s Parliament. You’ve gone from a system where you have an absolute monarchy to a system where you have an unlimited Parliament, that the Parliament can make whatever law it wants. It’s not constrained by any written constitution or any other institution, because it creates all the other institutions.
So, on one perspective, you don’t have limited government at all. But on the other hand, it clearly does seem like something has changed. And that is very visible, like I said, in the interest rates paid on state debt before and after this transition. In the behavior of the state in general, it acts a lot like a limited government. So what’s going on there? Did or did not a limited government get established here?
“‘The majority gets its way,’ I think, is a naive understanding of, ‘What is democracy?’ The better, truer, more sophisticated version of the story is that democracy is fundamentally about the basis on which power is exercised in society. Democracy is the condition of, ‘power is exercised on equal and reciprocal terms, such that no one person rules over anyone else.’” — Robert Black
Black: What’s happening is that limited government in essentially the American sense, in the modern sense, still doesn’t exist, still hasn’t been invented. In fact, orthodox British political thought in the 18th century basically holds that it’s impossible. The limits that exist on the British state in the 1700s, in the Glorious Revolution model of the British state, are basically political limits that Parliament—or at this point they’re still probably saying the king in Parliament—is absolute, is unlimited; but constitutionally, in one of these older senses of the term, by its nature, is limited to act in certain ways.
One of the things that you get from an elected legislature instead of a single monarch is just stability, because there’s a bunch of them. It’s not just one person whose whims can change on a dime—it’s a few hundred people whose actions are determined by averaging out all of the views of the different members and finding, if not a consensus, at least a median or whatever. And there’s considerably more stability to the laws that you’re going to get out of Parliament than out of a personal-rule monarch. That’s part of it. There’s the fact that they are answerable to constituencies at election.
It’s not really democratic because Britain in the 18th century is malapportioned. There was this borough called Old Sarum that had been a Neolithic hill fort or whatever. But by the 18th century, literally nobody lives there anymore. It is uninhabited. It has zero population ... and two members of Parliament. And those members of Parliament are, in fact, chosen by the people who own the land. They don’t live there, but somebody nominally owns the land, and they choose the members of Parliament. So it’s hideously undemocratic in that sense. But there’s still constituencies, some even popular constituencies. I think basically everyone within the political class, the class that has political rights, gets to vote for Parliament, albeit on these very unequal terms. The House of Lords obviously is a continuing body. It’s not answerable to anyone—they just stay there for life. That’s what being a member of the House of Lords means.
So Parliament in a lot of ways constitutively, characteristically, is a very stable body compared to what kings were like when they were ruling by themselves. But it’s still true that we’re not quite at limited government yet. It’s this weird transition phase.
Hancox-Li: I actually have a hypothesis about this. There’s one perspective on limited government that we get from John Locke, who has come up in the background of the story several times, and is clearly one incredibly strong influence on the American Constitution. Jefferson lays out the Lockean theory as clearly as can be in three sentences: We hold these truths to be self-evident. All men are created equal. They are endowed by their creator with certain inalienable rights. To secure these rights, governments are instituted among men. We have this concept of individual right that is prior to the state—prior to society, actually. It is a divine right that you just have, inalienable; and the purpose of government is just to secure those things. So if government is trespassing beyond those bounds, it’s inherently illegitimate. There are limits to government that are set on a moral, philosophical level that transcends all possible law. That’s a Lockean idea.
But then you get this question of how you actually make a government that does that. There’s the philosophical limitations on government, but how do you actually constitute a government that will do this? And now we need to talk about the French; we need to talk about Montesquieu, who is another enormous influence, not on Jefferson but on Madison and on the eventual structure of the Constitution. So what does Montesquieu have to say about this idea of limited government, or have to teach us about limited government?
Black: There’s a bunch of ideas associated with Montesquieu. The characteristic one is this idea of the mixed republic. There’s this line of thought going back to classical antiquity, going back to Aristotle, that there’s three forms of government. There’s monarchy, where one person rules. There’s aristocracy, where a few people rule. There’s democracy, where “the many” rule. One of the strands of thought about the British state that emerges, principally in the wake of the Glorious Revolution, is that it subverts this classical scheme in this interesting way. It combines all three of these into a single structure: there’s still a king, there’s still an element that is monarchy, that is “the one.” You have the House of Lords, which is “the few.” And there’s the House of Commons, which is “the many.” And the sovereignty in this era of the British state is said to belong to the king in Parliament. It’s all three of these estates, as they’re sometimes called, coming together into a single institution. This is referred to as a mixed republic, and there’s this idea that this is good. This works well at avoiding the degeneracies of any one form by itself. There’s thought going back to classical antiquity about how any of these forms will degenerate, will go bad, will become what Madison would call factional rule where you’re not ruling in the interest of the whole people, you’re just ruling in the interest of the ruling faction, whether that’s the one or the few or the many.
“You could AirDrop the U.S. Constitution into a lot of societies and it’s not going to work the way we like to think. It has largely worked in the American context. … The Soviet Constitution, famously a glittering, liberal-democratic document that wasn’t worth the paper it was printed on.” — Robert Black
So there’s this idea, you set them all in equipoise and you protect against this kind of factional rule in this way. Montesquieu also is the first theorist of the modern understanding of separation of powers. Locke talks about the legislative power and the executive power, but that’s not how we talk about it today. There’s a third one and that’s the judicial power, which for Locke is a part of the executive power. There’s no real ambiguity. The thing we think of as the judicial power, Locke knows about it. He’s actually very concerned with it. It’s kind of key to his whole system. He just thinks of it as part of the executive power. The guy who begins to draw those apart theoretically is Montesquieu.
So you have these two overlapping triangular systems: you have the Crown, the Lords, the Commons, keeping each other in check. You also have the legislature, the executive, and the judiciary, keeping each other in check. And obviously this influences Madison enormously, although Madison’s ideas are different from Montesquieu’s in some interesting ways. Montesquieu still basically believes in legislative or parliamentary supremacy. The idea of separation of powers that you get following the Montesquieu tradition—which is what continental Europe mostly did up through the Second World War, when it backfired a bit—separation of powers means that any kind of real policy-making power, being legislative in nature, is separated from anything that isn’t the legislature. That’s legislative supremacy. It’s inconsistent with things like the presidential veto of legislation. It’s inconsistent with Montesquieu’s version of separation of powers. It’s obviously inconsistent with judicial review, because that’s judges taking up power that rightfully belongs to the legislature. The powers of the executive and the judiciary are much more subordinate, are much more just carrying into effect what the legislature has decreed.
But there is still this idea that that separation creates these spaces for liberty in interesting ways; that having it be the same person who writes the laws, who enforces the laws, who adjudicates the laws, creates this possibility for tyranny. This is something that Rousseau, who we haven’t really mentioned yet, is obsessed with: this idea of general lawmaking, that the legislature’s role is only one of creating general laws. The execution of the laws belongs to the executive. So a general law says, “murder is a crime,” and we write that law before you know anything about who we’re going to charge with breaking this law. In a way, it’s the Rawlsian veil of ignorance making an appearance a couple centuries early.
Hancox-Li: It’s in the American Constitution. The prohibition on bills of attainder is: you can’t make laws that name specific people. They have to be general laws.
Black: Right. And certainly today we would view these as rule of law principles. We talk about the principle of legality, which means you can’t be charged with a crime, subjected to criminal punishments, except for violating a criminal statute that already existed at the time you did the thing. No ex post facto laws. And what this is meant to ensure is that the laws have this general form. In the ferment leading up to the American Revolution, a lot of these ideas about the structural guarantors of liberty—the way you can design the government so that, even though its powers are not formally limited, it is going to respect the liberties of the people—is very important in the grievances that they have about Parliament. If you look at things that are being written in like 1774 by people like James Wilson and Alexander Hamilton, part of the problem with the situation where the Westminster Parliament—which is elected by the people of Great Britain—is governing for the colonies is they’re not subject to the same laws as us. In all of these ways, it violates these rule of law principles that are meant to make the legislature have the people’s interests at heart in the right way when they’re legislating.
So that’s very much a part of the primordium, but is still a little different from limited government in the modern sense. We want the government, which is still not really limited, but we want to design it in such a way that it’s going to use its powers in a way that’s nice, that’s respectful, that’s not oppressive and tyrannical. And we think we can do that, and there’s a bunch of ways that we think we can do that. The British experience is really a story of all of those ideas working astonishingly well.
Hancox-Li: There’s a lot to talk about here. For us, the idea of separation of powers is totally natural. It’s like the air we breathe. Obviously there are courts and that’s one thing, and there’s the executive and that’s a different thing, and there’s Parliament and that’s the legislature and that’s a different thing. This feels very natural. But I think it’s worth casting our minds back to the age of kings where the kings don’t see it—at least at some point the kings don’t see any of this—as separate, because there’s just stuff the king says. There’s just rulings the king is making.
To go back to these familial metaphors, if you live with a father who thinks that the house is his kingdom, he doesn’t separate out his edicts into like general laws and applications and executions, he just says stuff and then you’re supposed to do it. So the Montesquieu innovation is to start to see different aspects of governance, to disentangle all these different threads that go into effective governance. And then in the American system, we actually institutionalize that. We don’t just philosophically separate out all these strands of monarchical power—we’re going to make it fundamental to the structure of government that these are done by different people, who are appointed or elected in different ways, who have different rights and responsibilities. This is in some ways fundamental to the system of limited government in America.
Madison is consumed by the problem of faction. He’s consumed by this idea that we can write out all these laws that say the government shouldn’t do this and shouldn’t do that and shouldn’t trespass on these rights—but what happens when a group of people comes into power and they have all the power and they just don’t want to do it? This brings us back to the very problem of binding the sovereign’s hands. How do you actually make it work? Part of the American answer was the famous Madisonian phrase: ambition must be made to counteract ambition.
Black: For kings, none of the stuff is separate. As I’ve alluded to, in their origin that’s what courts and legislatures were, at least in English constitutional history. In antiquity there’s some different stuff going on. But Parliament is the king’s council. It exists by the king’s will. The judges are the king’s judges, created, imbued with this power to carry out the king’s business in his name.
Fast forward a few centuries and we’ve gotten very used to these things having a life of their own. And then, as you’ve said, the American Constitution is not like this. The president isn’t created by Congress. Congress isn’t created by the president. The Constitution creates both of them. Legislative power is vested in Congress. Executive power is vested in a president. Judicial power is vested in the courts. Well, vested by whom? And now we’re circling around actual, factual limited government. You were saying, well, we can write down all of this stuff about the government can’t do this and can’t do that. But that’s still an innovation. No one’s done that yet, until the Americans. You have bills of rights. You have the English Bill of Rights of 1689, which is basically the settlement of the Glorious Revolution. That’s technically an act of Parliament. You have, going back even further, Magna Carta. But that’s a compact between a king and his people. It’s an agreement by the king: “I will forbear to do these things.”
“What can prevent a formally very nice constitution from actually working is when you have social power hierarchies that are so well entrenched that creating the layer of equal political power on top of them just won’t take. … If you have a system where wives are subordinated to their husbands in all sorts of ways—backed by threats of violence, patterns of social coercion and conformity—you’re not going to have a real democracy, either, because democracy requires that everyone be free to act as an agent in the political arena, having agency, having free will.” — Robert Black
Hamilton makes this point in The Federalist Papers where he’s basically defending the fact that the federal Constitution doesn’t have a bill of rights. He’s saying we don’t need a bill of rights. Bills of rights are for people negotiating with a monarch and getting the monarch to say, “I’ll be nice, I promise.” The whole Constitution is a bill of rights. The structure of the thing is going to make it friendly to the people’s liberty. But is it, though? In fact what you get in the American context is this fusion of these Montesquieuian ideas about separating out the different powers of government—playing them against each other in the Madisonian example so that they check each other’s power—with this idea of limited government power.
In British political thought in the 18th century—I mentioned this already—this is thought to be conceptually impossible. Locke already exists. Government is instituted to secure these rights. It is limited by this purpose. If government exceeds what is necessary to vindicate the people’s rights, it has gone beyond the power that is allotted to it by the social contract. That all exists. But British political thinkers and statesmen believe in a basically Schmitt-like idea that there must necessarily always be, somewhere in any system of government, a final absolute power. Someone, when push comes to shove, has to have final authority. This authority is the sovereignty, and it cannot be divided. This is an axiom of British political thought in the 1700s. There’s this phrase, imperio in imperium, which is how they mock the idea of limited government or formally divided power, that if you try to set up a division of government powers you are creating kind of a state of war. You have these two different sovereignties within the same country.
This is a very Hobbesian idea. Hobbes thinks that the only solution to the problem of people at each other’s throats—people are always going to be fighting, trying to take each other’s stuff, no one’s going to have security, it’s not just war it’s the war of all against all—is this single absolute sovereign who can just lay down the law and keeps everyone in fear of violating the law. And the law says, “Don’t go around killing each other.”
The cover of Leviathan is itself one of the most famous works of political philosophy—this big guy made up of all these little guys, this idea of the people of the nation coming together into this abstract entity which is the sovereign, which in principle is probably the king. So it’s this very Hobbesian idea that if you divide the sovereignty, all you’re doing is making the Leviathan not actually work. You’re going to get a war between these competing mini-Leviathans, and it’s going to mess up the whole project.
So the Americans, in trying to set up a state on these Lockean grounds, have to wrestle with this.
They have this idea that says there are these inalienable rights. That’s actually a post-Locke innovation—the concept of “inalienable”—but it fits nicely. For anyone listening who doesn’t know the technical meaning of inalienable—it’s kind of an unfamiliar word—to alienate means to give up, to give away. You alienate your property. When you buy groceries at the store, you alienate the money that you used to pay for it. You owned it and now you don’t: you alienated it. Inalienable means “unable to be given up,” and this matters because in the social contract theory, government power comes from the people. It is given by the people to the state. But if some of the natural political authority that people have over themselves is actually inalienable—cannot be given up—then it can’t be given by the people to the state, and that entails that the state’s power must be limited.
But that’s this contradiction. That’s imperio in imperium. We have a problem. The Americans need to solve this problem, and they do solve it. The way they solve it is largely by taking up the tools of corporations law, which exists in not really a modern form yet but a primordial form, and agency law more broadly. Agency law is the law of, “I authorize so-and-so to act on my behalf in this matter,” which comes up a lot in commercial affairs. It’s what lawyers basically are. The word attorney actually means agent. And there’s a whole body of law about this stuff that the Founders are all very familiar with.
The British colonies in North America are corporations. That’s technically what they are. They have these corporate charters, they’re colonial charters. They’re similar to the East India Company, the West India Company, that sort of thing. The king authorizes this group of people to go colonize Virginia or whatever. And there’s an idea that’s sort of limited government that emerges from this. Because when the king creates a corporation, or when I hire someone as my lawyer, I give them some powers that had previously belonged to me, but not all of the powers that previously belonged to me. I make you my lawyer, you can represent me in some matters, but it’s not just an open-ended, complete alienation of every power I possessed.
So they draw on some of these ideas and say, “You’re right, actually, that sovereignty can’t be divided.” Sovereignty can’t be divided, but sovereignty never moves. Sovereignty starts in the people, and it stays there. The sovereignty itself is never transferred. Limited portions of the sovereign authority of the people gets transferred to particular government entities. The government is not sovereign. No part of the government is sovereign. In Britain, is it Parliament that’s sovereign? Is it the king? You can’t have multiple different sovereigns within the government. The Americans are saying you have no sovereigns in the government. None of the government is actually sovereign. It’s just an agent of the people. The people are the true sovereign. And an agent can be given a limited set of powers. Indeed, it’s inherent in an agency relationship that the agent’s powers are limited. Otherwise, they wouldn’t be the agent, they would be the principal.
Hancox-Li: So there’s this important philosophical question about where is sovereignty? Is it in Parliament, or the king, or perhaps the people? And we say sovereignty is in the people, it never leaves. But what, in practical terms, does this mean about the structure of the American government and the American Constitution?
Black: It means that if government is agents of the sovereign like this, then you can say, “This one has these powers, and this one has these powers, and this one has these powers.” None of them has all the power. And indeed, even taken together, they don’t have all the power. Some of the power is reserved to the people.
In the modern context we think of constitutional rights as limits on government. But in this early-modern context, one way of understanding what something like the First Amendment is doing is saying, “The power that people naturally have in this pre-political state to govern themselves, legislate for themselves in a way, the legislative power is understood as being derivative of the power that we each have to basically like decide what to do at any given moment.” And it’s when you delegate and pool that authority that you get the legislative power in this political sense. But some of that legislative power just remains with the people. The power that I have in the state of nature to decide what I’m going to say, I don’t give up. I retain it. I never give it to the government. The government doesn’t have the power to tell me what to say because I retain it.
But also, even of the powers that are given to the state, they’re not all given to one body or one institution. And this isn’t like this contradiction, this imperio in imperium, because the people are the ultimate judge of everything. There’s this idea: ambition must be made to counteract ambition; the branches are to play against one another. But an important idea is that when the branches are fighting—when they’re fighting about what the Constitution means, when they’re fighting about the scope of their various powers—ultimately these disputes are to be resolved by the people, who are the principal.
“This was one of the absolutely infuriating things about last year. Trump was running on a platform of, ‘I am going to be king.’ He was very unsubtle about it. He said it again and again and again and again. And the idea that the central point of the campaign against him should be, ‘This man is going to make himself king,’ was seen as naive, like, ‘Oh, ordinary people don’t care about these sort of abstract constitutional questions.’ Do you realize how doomed we are if that’s true? The entire system of government depends on that not being the case. It depends on the people [being] committed to their Constitution and vigilant against threats to it and who will, through elections, defend the country against would-be tyrants.” — Robert Black
You see something like this in the election of 1800, where actually all three branches of the federal government have basically conspired in upholding the Sedition Act, which says you can’t criticize the president or the Congress. (You can criticize Vice President Jefferson, though; we don’t much like him.) Congress passes it, President Adams signs it. It doesn’t ever go to the Supreme Court, but Supreme Court justices sitting on lower courts (in the way that was done in those days) uphold it basically as a matter of course. But a lot of people think this is actually unconstitutional, this is tyrannical. And Jefferson, largely on a platform of “the Sedition Act is outrageous,” wins the election of 1800. And this is seen as the people playing this role as the final arbiter of their own Constitution, saying, “You all are agents, you got it wrong. This thing that you all did, actually, you didn’t have the power to do it. We’re going to step in and sort this out.”
It’s very common in political theory circles, and in constitutional law circles, to see democracy and limited government as opposed to one another. I think this has to do with what, to my mind, is a slightly naive understanding of what democracy is: “Democracy means the majority gets its way.” There’s a lot of people who think if you tease out the implications of “the majority gets its way” seriously, you end up basically at Schmitt. You end up at something like, “The majority can do whatever it wants; there can be no limits on its power.” But actually, this is going to consume itself.
I very much have come to the belief that limited government and democracy both need each other at an extremely deep and intimate level. You can’t have democracy without limited government, because if the government has unlimited power then it can say you can’t criticize the president. And now you have elections, but nobody can criticize John Adams so your elections aren’t so meaningful anymore.
Conversely, this thing you’re saying about how you bind the king, it’s an aspect of imperio in imperium that I haven’t stressed—this idea that there can be no law against the lawgiver. If the law comes from the king, then how can it limit the king? So in order to make limited government real, you need it to be this act of self-limitation, of the people limiting themselves. The government is an instrument through which the people act, but the people—wishing to preserve their own liberty, mindful of all of the ways that unlimited majoritarian power can consume itself—say, “We’re going to create these limited institutions, and through that, we’re going to limit ourselves. We’re going to limit our own ability to act, by this legality principle.” The people can only act to put somebody in jail by having this one agent called Congress write a law first, and then this other agent called the president do an investigation through the Department of Justice, and this other agent called the court saying, “Yes, this person was duly convicted.” The people are powerless to say, “We don’t like that guy, throw him in jail.”
Hancox-Li: I really like this point that limited government and democracy are in tension but need each other. I think it gets to a deeper point about what this thing called limited government even is, and how it can possibly work. Because there are all these arguments that you see from guys like Schmitt—imperio-imperium stuff—that the idea of limited government is incoherent. Rousseau, I think, believes this as well. It’s an old tradition. What falls out of this is that limited government is partly a matter of the internal structure of government. But it’s not just a matter of the internal structure of government. It’s about the structure of the society that that government is a part of. Ultimately, I think it comes back to the idea of an open society.
One of the features of an open society—here I’m drawing on North, Wallis, and Weingast, in their book Violence and Social Orders—is that in the monarchical system, all the threads of power are totally intertwined, and all social structures and all forms of social organization are kind of intertwined. What an open society does is crack all that open. If you’re excluded from one form of social participation, if there’s some kind of horrible economic situation—you’re in economic oppression or a monopoly, or someone just has too much economic power and they’re messing up your day with it—you’re not locked out of political power. You’re not locked out of associational power to go out and meet other people and organize with them. You are not locked out of the ideological arena, because you can go out and talk and spread your ideas. And so there’s oppression here, there’s some kind of exclusion; we don’t like it, but you can counter-mobilize against it through this other form of social organization.
That’s a kind of limitation of power that goes far beyond the internal structure of government but is something that encompasses the whole of a society. That prevents different hierarchies from wrapping all around each other and becoming one big, stratified system that controls society. That just breaks that up and makes ambition to counteract ambition, not just within government, but within all of society.
Black: Absolutely. I think a lot about this—the way that you could airdrop the U.S. Constitution into a lot of societies and it’s not going to work the way we like to think. It has largely worked in the American context. There are all these examples—the Soviet Constitution, famously a glittering, liberal-democratic document that wasn’t worth the paper it was printed on.
I’ve been thinking a lot about these questions because they’re the question facing us now. We still have our nice, liberal, limited constitution, and it doesn’t seem to be doing the thing anymore. For me this has taken the form of trying to think very deeply about what is democracy, actually. “The majority gets its way,” I think, is a naive understanding of, “What is democracy?” The better, truer, more sophisticated version of the story is that democracy is fundamentally about the basis on which power is exercised in society. Democracy is the condition of, “power is exercised on equal and reciprocal terms, such that no one person rules over anyone else.”
What can prevent a formally very nice constitution from actually working is when you have social power hierarchies that are so well entrenched that creating the layer of equal political power on top of them just won’t take, in a lot of the same ways as, “Well, you can’t criticize John Adams, so we don’t really have a democracy.” If you have a system where wives are subordinated to their husbands in all sorts of ways—backed by threats of violence, patterns of social coercion and conformity—you’re not going to have a real democracy, either, because democracy requires that everyone be free to act as an agent in the political arena, having agency, having free will.
If there are social systems that make it difficult for some people to act as authentic political agents, the whole thing just can’t “take,” because those people are in a state of unlimited subjugation, even if it’s not by the state exactly.
Another insight of democracy is: the state is just people. So if you’re being subjugated by your husband, then at least past a certain point, you’re still being subjugated. And having the limited government ... well, government doesn’t need to do anything for you to be subjugated. This is why I’ve adopted the saying, “Anarchy is tyranny and tyranny is anarchy.” Because one thing that I think a lot of anarchists miss—and anarchy has this sort of attraction to it, that if government power is this thing that we’re worried about, why not just get rid of it—is that government power isn’t that special. It’s just power, and if there’s no government power, well, there’s still power, and people are still going to use power over other people.
“What’s wrong with the American Constitution? Well, what’s wrong is that nobody cares about it. What it’s missing is a constituency. What it’s missing is anybody to give a damn that the things that are happening are not lawful.” — Robert Black
Hobbes is largely an antagonist in these conversations, because he does not believe in limited government, but I think there’s a lot to the idea of the Leviathan. There does need to be a common power that is keeping everybody in awe and is saying, “You can’t do that to people.” Now, the Leviathan doesn’t need to be—and in fact, can’t be—absolute in the way that Hobbes thinks it has to be. It has to be limited and democratic in these ways; but you need something with the power of a state that is able to say, “People can’t keep other people in their basements, literally or metaphorically,” in order to have any kind of free society. So it’s this seeming paradox where in order for people to be free from rule and dominion and whatever, there’s actually a minimum degree of state power that you need, as well as a maximum.
Hancox-Li: I think that’s quite right. You can look in parts of the world that have gone through significant state collapse, and the people there do not seem like they are more free. They seem like they are more subjugated, often by their neighbors with guns.
Black: You get warlords, and what happens is the warlords are not limited.
Hancox-Li: Exactly. The warlords aren’t limited. They’re just petty kings who haven’t quite established a dynasty yet. So I think there is this way in which, for a long time now, liberals have been overly enamored with formal rights, without recognizing the importance of a certain equality of power that is necessary for free society, that is necessary to make an open society work. There’s this famous line from George Washington, “Each man shall have his own fig and his own vine, and no one shall make him afraid.” And the fig and the vine part is important, actually—having your own little bit of wealth and property and security is part of why no one can make you afraid, whether they’re from the government or anywhere else. And so I think that’s there’s that aspect to it.
But I also want to focus on another part of what we’ve been talking about, which is this idea that the Constitution is not self-enforcing. And we see that very visibly right now—there are people in power in the government who are like, “What if I just didn’t?” But this is the thing: the Constitution was never self-enforcing. It’s never been true that it just kind of magically makes people conform. To it to the extent that it has ever worked, that we’ve ever had limited government in America, it’s because “we the people” continue to exercise our unalienated political power to ensure that we have limited government.
Black: Yeah, absolutely. And that’s that story of the 1800 election. People, I think, will often refer to the idea of the Constitution as self-executing as “lawyer brain.” But to some extent that’s not right: a lot of lawyers, legal theorists, constitutional theorists—we’ve known this forever. This is not actually a surprise to any of us. There’s this famous speech by Judge Learned Hand—from 1944, I think—called the “Spirit of Liberty” speech, where he’s asked to give some talk about the spirit of liberty or whatever. And he says this famous line, the spirit of liberty “lies in the hearts of men and women.” When the spirit of liberty dies in the hearts of the people, “No law, no court, no constitution can even do much to help it.”
Going back to how the 18th-century British system succeeded in the way that it did, there’s a dimension of all of this, that if people in power are seen to be trying to transgress the limits that the Constitution has set upon them, they lose elections. The people don’t reelect people who are a threat to the constitutional scheme. That is an indispensable part of making the whole thing work. And when it goes away, you have a problem.
To me, this was one of the absolutely infuriating things about last year. Trump was running on a platform of, “I am going to be king.” He was very unsubtle about it.
Hancox-Li: I mean, he just said it, right?
Black: He said it again and again and again and again. And the idea that the central point of the campaign against him should be, “This man is going to make himself king,” was seen as naïve, like, “Oh, ordinary people don’t care about these sort of abstract constitutional questions.” Do you realize how doomed we are if that’s true? The entire system of government depends on that not being the case. It depends on the people [being] committed to their Constitution and vigilant against threats to it and who will, through elections, defend the country against would-be tyrants.
I wrote a piece for my newsletter a few months back where I said: What’s missing with the American Constitution right now? What’s wrong with the American Constitution? Well, what’s wrong is that nobody cares about it. What it’s missing is a constituency. What it’s missing is anybody to give a damn that the things that are happening are not lawful. And I don’t want to paint with too broad a brush here: there are plenty of people in America who do care about this, and are taking action, such as they can, to try to defend it. But when you just had an election where the idea that the people were going to punish somebody who was saying openly in so many words—it was basically his entire campaign platform, he did not talk policy—all he talked about was, “I am going to make myself paramount over the law.” And nobody thought that the people were capable, really, of giving a damn about it.
Were they right, or was it sort of a self-fulfilling prophecy? I don’t know. But when that happens, and then that guy wins the election, everyone is going to say, “Yeah, this guy’s king now.” That’s where this Schmittian order comes from, this idea that the people aren’t really capable of acting as a Madisonian sovereign. They’re not really capable of: “We are the principal, the government is our agent, we’re going to police what they do on our behalf.” All they are capable of is saying, “This is what we want, and we’re going to imbue this guy with total arbitrary sovereign power to go pursue it.” If that’s true, we’re doomed. I hope it’s not true. If it is true, we need to make it stop being true. There is no way out that doesn’t run through getting a people who give a damn about holding their government to its own limits.
Hancox-Li: As Abraham Lincoln put it, as a nation of freemen, we will live for all time or die by suicide. All the wise pundits, the wise pollsters, don’t really like this idea, that actually it’s really important to campaign on the idea of freedom, on the idea of a limited government under the Constitution. But without that, we are going to lose all the rest of it. We are going to be sliding progressively back into a form of government that, as we discussed, is inefficient, that is corrupt, that is tyrannical, that will undermine whatever possible good you wanted out of it. This spirit of limited government and of freedom needs a party that will campaign for it.
An earlier version of this conversation first ran in Liberal Currents.
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