In the Introduction to his Capitalism and Freedom, Milton Friedman writes that
Two broad principles embodied in our Constitution give an answer that has preserved our freedom so far, though they have been violated repeatedly in practice while proclaimed as precept. First, the scope of government must be limited. . . . The second broad principle is that government power must be dispersed.
While we might agree with Mr. Friedman that some British constitutional theorists and legal scholars favored this anti-Federalist view and even that some at the Constitutional Convention favored this view, it would be extremely difficult to find these two principles stated outright in the Constitution itself. (Indeed, I challenge students to find them stated there in this way.)
However, aside from the fact that these principles are not expressed in the Constitution, there are two additional complications. Upon reading the serialized version of the so-called “Federalist Papers,” which conveyed the sense of the conventioneers and their document to the public before its official publication, the anti-Federalists were so incensed by the document that they composed their own broadsides, excoriating the very document that Mr. Friedman her claims to defend. They excoriated it precisely because they found that it provided far to much scope to the Federal government and that it failed to sufficiently disperse governmental power.
But that is not all. Not a century after this Federalist Constitution was ratified, anti-Federalist sentiment in the southern United States ran so hot—particularly, but not exclusively, over the issue of whether the Federal government could pass laws depriving individuals of their private property (in this case, slaves and arms)—that, rather than submit to Federal tyranny, they opted for separation and civil war.
This does not make Mr. Friedman’s defense of capitalism untenable, only that part of his defense for which he seeks Constitutional succor.
However, it does call attention to some very curious features within Mr. Friedman’s argument. Did the framers of the Constitution really understand the “separation of powers” as a separation of the political from the economic? I had always supposed that they meant the separation of the judiciary, the legislative, and the executive branches of government. And, even admitting that it was this group (and not their irate detractors outside Constitution Hall) that feared the concentration of power, did they really conceptualize this fear in terms of Federal government as a whole rather than the concentration of this power in a single sovereign?
Interestingly enough, it is Mr. Friedman himself who seems unable to think about the dispersal of political power, asking:
But can there be more than one really outstanding leader, one person on whom the energies and enthusiasms of his countrymen are centered (p. 16)?
Well, yes, there can be. And we hope there is. But, Mr. Friedman’s point is that we would rather have power dispersed over as many individuals as possible. And that can only happen through the market.
And, so, in the end, by attempting to politically rather than economically “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” Mr. Friedman apparently feels that the framers of the Constitution were pursuing the wrong course. More on that, though, in the next installment.