Limiting Leviathan

IN THE FAUSTIAN LEGENDS, Faust trades his soul to the devil for knowledge and power. As Vincent Ostrom (1984) notes, government involves a form of Faustian bargain. People grant governments the right to use an instrument of evil, coercive power, in exchange for the improved public order that such power can promote if used wisely. The problem, of course, is that governmental power can be used for bad as well as for good purposes.

Most bargains involve tradeoffs, and the Faustian bargain is no exception. Governments with weak policing powers may give us little reason to be concerned that they will invade our liberties, but they may also fail to provide the degree of security we would like. But as we strengthen the ability of government to provide that security, we also provide it with stronger tools with which to infringe our liberties.

Constitutional governance has always been concerned centrally with the terms of this Faustian bargain. The federalists argued that the central government under the Articles of Confederation was too weak to provide internal order and security against invasion. They also argued that the strengthened government provided by the proposed constitution would be able to provide that order and security, while at the same time managing pretty much to keep under control the dark side of the Faustian bargain. To the contrary, the anti-federalists argued that order and security could be provided just as well with the modest revisions to the Articles of Confederation, and that moreover, the centralization of government authority promoted by the proposed Constitution would be damaging to personal liberties.

Internal order and security against invasion were secured over the following two centuries, though individual liberties were also subject increasingly to abridgement, particularly during the past century. In any case, and looking to the future, the principles of constitutional governance claim that the terms of the Faustian bargain can be influenced by the particular ways in which the offices and positions of governmental authority are constituted.

The United States was founded upon the premise that government is not the source of individuals’ rights. Rather, those rights exist prior to the creation of a government, and government is created to protect and preserve those rights. Government is subject to limits that reside in the prior rights of individuals, and is not itself the arbiter of those limits or rights.

Given an adherence to majority rule as a governing principle, efforts to control the dark side of the Faustian bargain focus on ways of constraining the exercise of democratic power through one form of constitutional construction or another. Indeed, it is difficult to make sense of many constitutional provisions without a recognition that that provision was articulated to forestall some dark manifestation of the Faustian bargain.

The very creation of a Bill of Rights implies the presumption that without such articulated limits on government, the rights in question would be violated by government. The First Amendment guarantee embodies the presumption that otherwise Congress would be likely to abridge freedom of the press, religion, and speech. The Fourth Amendment entails the presumption that otherwise unreasonable searches and seizures would result. The presence of the final clause of the Fifth Amendment would make no sense, were it not for a presumption that the dark side of the Faustian bargain would lead governments to take private property without paying just compensation.

The Faustian dilemma, however, is not overcome once and for all in one mighty act of constitutional draftsmanship. Constitutional erosion takes place, much of it accompanied by imaginative acts of interpretation whereby meanings are transformed into their opposite. Thus, the general welfare clause becomes transformed from a limit on the ability of Congress to appropriate, because appropriations must be limited to objects of benefit to everyone, to a license for Congress to appropriate as it pleases, perhaps as illustrated by the 1954 Supreme Court ruling in Berman v. Parker, “When the legislature has spoken, the public interest has been declared in terms well-nigh conclusive.” New ways of evading constitutional limitations on government lead in turn to renewed interest in constitutional limitations, including new forms of limitations.

A variety of new forms of limitation are examined in the essays in this book and various aspects of that Faustian bargain in an American setting are explored.

Mr. Racheter is the Executive Director of the Public Interest Institute in Iowa and Professor of Political Science at Central College. Mr. Wagner is the Holbert L. Harris Professor of Economics at George Mason University. This article is excerpted from Limiting Leviathan: Faustian Bargains and Constitutional Governance, which they co-edited.