Crises and Power
 Civil Liberties
   Corporate Welfare
   Government Power
   Property Rights
U.S. Foreign Policy

Quotes on Power

About the book Crisis and Leviathan


Center on Peace & Liberty The Constitution and The Bill of Rights



The American political system was designed to limit government power. As conceived, the Constitution of the United States made it difficult for government to acquire new powers. The advantage of crisis to political leaders is that it enables new powers to be acquired in an extra-constitutional, but largely uncontroversial, manner.

The Constitution delegated powers that were, in James Madison’s words, “few and defined.” They are listed in Article I, Section 8. Due to the exploitation of crises, many of those powers, which were intended as limits on government authority, have been construed broadly, to the point where they barely limit power at all. Examples include the general-welfare commerce clauses.

The structure of the Constitution provides a guide to its own interpretation. When it is suggested that Congress do something, the appropriate response is to examine Article I, Section 8, to see if the proposed activity is covered by one of the enumerated powers. If it is not, then the federal government may not engage in the activity. But over the years, this power-limiting procedure has been overthrown for one that readily permits the acquisition and expansion of power. The advocates of new powers ignore Article I, Section 8, and examine the Bill of Rights to see if the proposed activity is not specifically prohibited. Justice Antonin Scalia recently suggested that the Bill of Rights does not prohibit Congress from enacting a law requiring everyone to carry a national identification card, an idea that has been promoted in the wake of the September 11 attack on the World Trade Center and Pentagon. Scalia said that those who oppose such a law should propose a constitutional amendment to prohibit it.

This turns the Constitution on its head. The original Bill of Rights consisted of Amendments I through X to the Constitution. They were adopted by the first Congress after some of the original states ratified the Constitution on the condition that a declaration of rights is added. The Bill of Rights was intended to limit how the Congress carries out its enumerated powers, not to nullify the enumeration. While a blessing in many ways, the Bill of Rights unfortunately has encouraged many people, such as Scalia, to believe that the government may do anything not expressly prohibited there. Clearly, the framers saw things the other way around: the government may do nothing but what is expressly authorized in Article I, Section 8. The opposite approach has the perverse effect of turning the intentionally onerous amendment process against those who wish to preserve liberty.

Undoubtedly, the constitutional arrangement planned by the framers has not worked as envisioned. Both the enumerated powers and Bill of Rights have been turned against liberty, and it has largely occurred under the impetus of crisis. Congress, presidents, and the courts have used various sorts of emergencies—military and economic—to construe the provisions of the Constitution in ways most conducive to the expansion of power. Examples include censorship and suppression of dissent during wars, despite the First Amendment guarantee of freedom of speech and press, and the myriad economic controls imposed during the Great Depression. When the “emergency” passes, government sheds some of the newly acquired powers, but often they are just scaled back to become a routine part of government. By this process, as decades pass, government grows to an extent that previous American generations would have never recognized (the “ratchet effect”).

Also, click here for Bibliography for Crisis and Leviathan.

Civil Liberties:

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Davis, James Kirkpatrick. Spying on America: The F.B.I.'s Domestic Counterintelligence Program. New York: Praeger, 1992.

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Twight, Charlotte. “Watching You: Systematic Federal Surveillance of Ordinary Americans,” The Independent Review, Vol. IV, No. 2 (Fall 1999), pp. 165-200.

Expanding Executive Power:

Berdahl, Clarence A. War Powers of the Executive in the United States. Urbana: University of Illinois, 1921.

Berger, Raoul. Executive Privilege: A Constitutional Myth Cambridge, Mass.: Harvard University Press, 1974.

Cobane, Craig T. Review of the book For the President's Eyes Only: Secret Intelligence and the American Presidency from Washington to Bush, by Christopher Andrew,” The Independent Review, Winter 1997, Vol. I, No. 3, pp. 456-459.

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—. The Dark Side of Camelot. Boston: Little Brown & Company, 1997.

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—. “No More “Great Presidents,” The Free Market, March 1997.

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Payne, James L. “Review of the book Dependent on D.C.: The Rise of Federal Control over the Lives of Ordinary Americans by Charlotte A. Twight,” The Independent Review, Vol. VII, No. 3 (Winter 2003), pp. 461-463.

Raico, Ralph. “FDR: The Man, the Leader, the Legacy,” Future of Freedom Foundation, 2001.

Rossiter, Clinton L. Constitutional Dictatorship: Crisis Government in the Modern Democracies. Princeton, N.J.: Princeton University Press, 1948.

Rutten, Andrew. “Review of the book Rethinking the New Deal Court: The Structure of a Constitutional Revolution by Barry Cushman,” The Independent Review, Vol. VI, No. 1 (Summr 2001), pp. 144-147.

Schlesinger, Arthur M., Jr. The Imperial Presidency. Boston: Houghton Mifflin, 1973.

Shogan, Robert. Hard Bargain: How FDR Twisted Churchill’s Arm, Evaded the Law, and Changed the Role of the American Presidency. Boulder, Colo.: Westview Press, 1999.

First Amendment:

Eland, Ivan. “Resist Giving FBI More Authority in Cyberspace,” Oregonian, February 17, 2000.

Hentoff, Nat. Free Speech for Me--But Not for Thee: How the American Left and Right Relentlessly Censor Each Other. New York: HarperPerennial Library, 1993.

—. Living the Bill of Rights: How to Be an Authentic American. Berkeley, Calif.: University of California Press, 1999.

Kalven, Harry. A Worthy Tradition: Freedom of Speech in America. New York: Harper & Row, 1988.

Kwitny, Jonathan. “Review of the book The Captive Press: Foreign Policy Crises and the First Amendment, by Ted Galen Carpenter,” The Independent Review, Vol. II, No. 2, Fall 1997, pp. 321-323.

Levy, Leonard W. Emergence of a Free Press. New York: Oxford University Press, 1985.

—. The Establishment Clause: Religion and the First Amendment. New York: Macmillan, 1986.

MacArthur, John R. “Censorship and Propaganda in the Gulf War: How Government Can Mold Public Opinion,” Independent Policy Forum, The Independent Institute, October 7, 1993 [Forum Audio, Forum Transcript]


Barnett, Randy E., ed. The Rights Retained by the People, 2 vols. Fairfax, Va.: George Mason University Press, 1989-93.

Bovard, James. Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil. New York: Palgrave Macmillan, 2003.

Cole, David D. Enemy Aliens. New York: New Press, 2003.

—. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. New York: New Press, 2002.

Collier, Christopher and James Lincoln Collier. Decision at Philadelphia: The Constitutional Convention of 1787. New York: Ballantine Books, 1987.

Corwin, Edward S. Total War and the Constitution. New York: Ayer Co., 1947.

de Jasay, Anthony. “Is National Rational?”, The Independent Review, Vol. III, No. 1 (Summer 1998), pp. 77-89.

—. “On Treating Like Cases Alike,”The Independent Review, Vol. IV, No. 1 (Summer 1999), pp. 107-118.

Dorn, James and Henry Manne, eds. Economic Liberties and the Judiciary. Fairfax, Va.: George Mason University Press, 1987.

Epstein, Richard. Bargaining with the State. Princeton: Princeton University Press, 1993.

Fuller, Lon. The Morality of the Law. New Haven, Conn.: Yale University Press, 1964.

Hamowy, Ronald, ed. Dealing with Drugs: Consequences of Government Control. Lexington, Mass.: Lexington Books, 1987.

Hentoff, Nat. The War on the Bill of Rights and the Gathering Resistance. New York: Seven Stories Press, 2003.

Higgs, Robert. “The Cold War Economy: Opportunity Costs, Ideology, and the Politics of Crisis,” Explorations in Economic History, July 1994.

—. Crisis and Leviathan: Critical Episodes in the Growth of American Government. New York: Oxford University Press, 1987).

—. “Crisis and Quasi-Corporatist Policy-Making: The U.S. Case in Historical Perspective,” The World & I, November 1988.

—. “Crisis, Bigger Government, and Ideological Change: Two Hypotheses on the Ratchet Phenomenon,” Explorations in Economic History, Vol;. 22 (1985).

—. “From Central Planning to the Market: The American Transition, 1945-1947,” The Journal of Economic History, September 1999.

—. “How War Amplified Federal Power in the Twentieth Century,” The Freeman, July 1999.

—. “In the Name of Emergency,” Reason, July 1987.

—. “Some Other Costs of War,” The Free Market, March 1991.

—. “War and Leviathan in Twentieth-Century America: Conscription as the Keystone,” from The Costs of War: America’s Pyrrhic Victories, edited by John V. Denson. Auburn, AL: Ludwig von Mises Institute, 1999.

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—. “Is the Constitution Antiquated?,” The Freeman, November 1999.

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Thornton, Mark. The Economics of Prohibition. Salt Lake City: University of Utah Press, 1991.

Trakman, Leon E. The Law Merchant: The Evolution of Commercial Law. Littleton, Colo.: Fred B. Rothman & Co., 1983. The spontaneous evolution of commercial law, a system of law created outside of the state by merchants and founded on the principle of freedom of contract.

Twight, Charlotte. Dependent on D.C.: The Rise of Federal Control Over the Lives of Ordinary Americans. New York: Palgrave St. Martin’s Press, 2002.

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Private Property:

Higgs, Robert and Charlotte Twight. “Economic Warfare and Private Property Rights: Recent Episodes and Their Constitutionality,” Journal of Private Enterprise, Fall 1987.

—. “National Emergency and the Erosion of Private Property Rights,” Cato Journal, Winter 1987.

—. “National Emergency and Private Property Rights: Historical Relations and Present Conditions,” Journal of Private Enterprise, Fall 1996.

Karlin, Norman. “Substantive Due Process: A Doctrine for Regulatory Control.” In Rights and Regulation: Ethical, Political, and Economic Issues, ed. Tibor R. Machan and M. Bruce Johnson. Cambridge, Mass.: Ballinger, 1983.

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Second Amendment and Defense:

Benson, Bruce L. “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” Journal of Libertarian Studies, Vol. 9, No. 1.

—. “Customary Law With Private Means of Resolving Disputes and Dispensing Justice: A Description of a Modern System of Law and Order Without State Coercion ,”Journal of Libertarian Studies, Vol. 9, No. 2.

—. To Serve and Protect: Privatization and Community in Criminal Justice. New York, N.Y.: New York University, 1998.

Camm, Frank A. Expanding Private Production of Defense Services (No. MR-734). Santa Monica, Calif.: Rand Corporation, 1996.

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Hoppe, Hans-Hermann. “Fallacies of the Public Goods Theory and the Production of Security,” Journal of Libertarian Studies, Vol. 9, No. 1.

—. “The Private Production of Defense,” Journal of Libertarian Studies, Vol. 14, No. 1.

—. The Private Production of Defense: Essays in Political Economy. Auburn, AL: Ludwig von Mises Institute, forthcoming.

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—. “Revolution and Social Change: The American Revolution As a People’s War,” Literature of Liberty, I, 2 (April-June 1978), pp. 5-39.

—. “Weapons, Technology, and Legitimacy,” in Morgan Norval, ed., The Militia in 20th Century America. Falls Church, Va.: Gun Owners Association, 1985.

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—. “Privateering and National Defense,” Working Paper No. 41. Oakland, Calif.: The Independent Institute, 2001.

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Tabarrok, Alexander. “Bring on the Bounty Hunters.” Oakland, Calif.: The Independent Institute, 1999.

Watkins, Jr., William J. “Combating Terrorism and the Lessons of 1798.” Oakland, Calif.: The Independent Institute, December 6, 2001.

War Powers:

Corwin, Edward S. Total War and the Constitution. New York: Alfred Knopf, 1947.

Ely, John Hart. War and Responsibility: Constitutinal Lessons from Vietnam and Its Aftermath. Princeton, N.J.: Princeton University Press, 1993.

Fisher, Louis. Presidential War Power. Lawrence, Kansas: University Press of Kansas, 1995.

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Tabarrok, Alexander. “Congress Shall Have the Power to Make War,” North County Times, April 5, 1999.

ten Broek, Jacobus, Edward N. Barnhart, and Floyd W. Matson. Prejudice, War and the Constitution. Berkeley: University of California Press, 1954.

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“What if Congress Declared War?,” Investor’s Business Daily, April 20, 1999.