Hayek and the American Constitution

This essay first appeared as an editorial in the journal Literature of Liberty: A Review of Contemporary Liberal Thought, April/June 1978, vol. I, no. 2, published by the Cato Institute (1978-1979) and the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio. Although the editorials were unsigned, they were probably written by the Editor Leonard P. Liggio or the Managing Editor John V. Cody. It is republished with thanks to the original copyright holders.

Declaration of Independence and modeled on English and colonial precedents, largely served as the prototype not only for those of the other states but also for the French Declaration of the Rights of Man and the Citizen of 1789 and, through that, for all similar European documents.” One source for Europeans was the Jefferson-inspired Researches on the United States (1788; 1976) by Filippo Mazzei, which discussed the Virginia Declaration of Rights.

What impressed Hayek was the Founding Fathers' oft-repeated insistence that “...a frequent recurrency to fundamental principles is absolutely necessary to preserve the blessing of liberty.” Here Hayek was quoting from the draft of the Virginia Declaration of Rights (May 1776), by George Mason.

George Mason (1725–1792) was featured as the cover portrait of our first issue. Mason epitomized the highest ideals of the Founding Fathers as expressed in the Bill of Rights. As a member of the Virginia Committee of Safety and Convention in 1775 and 1776, Mason drew up Virginia's Constitution and Bill of Rights, which exerted a radical influence on American constitutional institutions.

Mason was serving in the Virginia House of Delegates (1776–1788) when he was appointed a member of the Constitutional Convention in Philadelphia in 1787. Since he was a strong advocate of gradual emancipation, he opposed legitimizing slavery in the Constitution as a bargaining point in the convention to obtain consensus on the Constitution. His radical republicanism condemned central government as a danger to individual freedom, and valued local government as a bulwark of freedom against centralized authority. He distrusted the strong powers granted the national government by the new Constitution and headed the opposition to its ratification in the Virginia convention. After ratification, Mason insisted on amendments which led to the Bill of Rights.

Hayek seconds Mason's caution, by emphasizing how necessary the Bill of Rights was as a control on the powers of the government. “The danger so clearly seen at the time was guarded against by the careful proviso (in the Ninth Amendment) that 'the enumeration of certain rights in this Constitution shall not be construed to deny or disparage others retained by the people.'” A recent discussion of Mason's significance appears in Bernard Schwartz, The Great Rights of Mankind (New York, Oxford University Press, 1977). This study supplements Roscoe Pound's The Development of Constitutional Guarantees of Liberty (1957) and Bennett B. Patterson's Forgotten Ninth Amendment (1955).