Wednesday, August 29, 2012

Restoring the Lost Constitution

If you’ve read my most recent post, you already know that the constitution’s originally intended meaning has been bastardized by people who want to wield illegitimate power. But you might not know exactly how it happened, or what to do about it. How did we get to the sad, sorry state of constitutional disregard we’re in today? And what reforms in approach and law are necessary to bring us back to constitutional adherence? This article by the brilliant Randy Barnett helps to answer those questions by tracing the judicial precedent that enabled big government, and outlining a change in judicial standards that might help shrink it.

Why only the enumerated powers are constitutional

(Evaluating the American Constitution, Part II)

The US Constitution was ratified in 1789, and it took less than a year for its widely understood meaning to be ignored and distorted by power hungry men. The primary culprit was Alexander Hamilton, and the issue was the creation of a National Bank. In 1790, Hamilton introduced legislation into the first ever session of Congress to create a National Bank. The power to do so was not enumerated to the federal government by the constitution; however, it was also not expressly prohibited by it. This provided the first test case of the classic constitutional debate I discussed here: did the constitution list the things government was allowed to do, and ban everything else? Or did it list the things government was not allowed to do, and permit everything else?

President Washington was unsure how to rule on the matter, so he asked each member of his cabinet to write him a letter arguing their side. Treasury Secretary Alexander Hamilton argued in favor of the power; Attorney General Edmund Randolph, Thomas Jefferson, and James Madison argued against it. Ultimately, on April 15th, 1791, Washington sided with Hamilton, and signed the bank bill into law. With this decision, Hamilton pulled off one of the greatest perversions of the constitutions initial intent of all time, and in doing so set a terrible precedent for future generations.

This post will analyze what Hamilton, Jefferson, and Madison had to say on the matter. Then it will demonstrate why Hamilton was wrong, and why the other founders were right.

Part I: Why Alexander Hamilton’s argument was disingenuous bullshit

The full transcript of Hamilton’s letter to Washington can be found here. This post will only dissect the two most important and fallacious quotes. First up is the part where Hamilton takes a page straight out of Machiavelli and argues that the ends justify virtually any means:

“every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.” – Alexander Hamilton

Translation: “Any power which is not expressly banned by the constitution is permitted.”

This view is flawed for many reasons. Firstly, it is directly refuted by the constitution’s text. Even if we knew nothing about the framers intentions from their other writings, it is clear from the text itself that the constitution was ratified with the understanding that the powers of the federal government be confined to those explicitly enumerated. The very first section of Article I states “All legislative powers, herein granted, shall be vested in a Congress of the United States.” (emphasis added). The words “all powers herein granted” clearly specify that all the powers vested in Congress are those included in the document being read. In order for a power to be vested in congress, it must have been granted therein. If Hamilton wanted to justify the creation of a bank, he’d have to either prove creating it falls within one of those powers, or propose an amendment granting that power.

Another reason Hamilton was wrong was that at the time he was making this argument, the Bill of Rights had not even been ratified yet, meaning that there were very few things the constitution expressly banned. The only exceptions were minor rights to Habeas Corpus, bill of attainder, no ex post facto law etc. By Hamilton’s logic this meant the federal government’s power on all other matters was intended by the framers – and understood by the people who ratified it – to be essentially unlimited. That is absurdly false. Rather, the reason the Bill of Rights was not initially included in the constitution was that most of the framers deemed it redundant; if the government is only allowed to do X, Y, and Z, why make an addendum saying that it’s not allowed to do A, B, and C? In fact, Hamilton himself adopted this position during the arguments for ratification, which we’ll get to later. When the Bill of Rights eventually was added, it was not designed as a list of the only things which government cannot do; it was designed as an additional limit on those powers which had already been enumerated, with the understanding that any other power did not need to be limited because it was not allowed in the first place.

In fact, when Hamilton had proposed that the federal government have the power to charter corporations such as a bank in the Constitutional Convention itself, his proposal had been specifically rejected by the other delegates. How, then, can he possibly argue that this bank was meant to be within the powers those delegates granted the constitution? Essentially, he did it by deemphasizing the importance of a constitution at all. His letter continues:

“...all government is a delegation of power. But how much is delegated in each case, is a question of fact, to be made out by fair reasoning and construction, upon the particular provisions of the Constitution, taking as guides the general principles and general ends of governments.”

Translation: 0:11 – 0:16 of this video. (audio only found below)

No, Alex, they’re not more like guidelines than actual rules. The constitution is not merely a general guide, and power is not delegated using the “fair reasoning” of those who want it. You read the words in the constitution, do whatever it says, and don’t do whatever it doesn’t say. If “how much power is delegated” to government were not up to the constitution to decide, then why have one at all? If the powers justified for government could be determined by the “fair reasoning and construction” of politicians, then when do the people get the chance to reject or consent this reasoning? This turns the entire principle of legitimate constitutional government on its head. Politicians need to cite more than the “general principles and general ends of government”, however they define them, to justify their governance. They must cite a specific principle and a specific end which the vast majority of people they govern have specifically consented to in its formal written form.

But perhaps the biggest reason that Hamilton’s argument is bullshit is that he initially refuted it himself, only to flip-flop two years later to serve his personal political desires. Allow me to explain. The constitution was written in 1787. In the immediate aftermath of its public release, there was a great deal of uncertainty about whether the people would accept it. In order to become the law of the land, it had to be ratified by 9 of the 13 states (75%). Many of those states were deeply skeptical about expanding the federal government’s power, both because of the tyrannical government they’d just escaped and the desire to retain full authority over their own states. The framers who had spent all summer crafting this document wanted desperately to convince the people that their handiwork was a good idea. So three of the constitutions most well-known framers set out to write a series of public essays to assuage these concerns. Those essays were published under the pseudonym “Publius”, and are today referred to as the Federalist Papers. Their authors were Hamilton, James Madison, and John Jay. Over the course of the next two years, those men published 85 articles designed to sell the constitution to the voting public and downplay the fear of centralized tyranny.

The man who wrote more of these papers than any other was Alexander Hamilton. This was peculiar, because in the proceedings at the Constitutional Convention itself, Hamilton’s ideas had very little influence on the overall result. Frankly, this was because nobody agreed with him. Hamilton was an unabashed supporter of a monarchy with nearly unlimited powers, while most others at the convention feared those powers. Furthermore, he wanted those powers to be concentrated in the executive, while most others else wanted to separate them. Hamilton advocated such unpopular ideas as lifetime terms for the president and for all senators. Known to disdain the common, poor and uneducated folk, he opposed any democratic input in the government at all. He suggested that state governors to be appointed by the president, and wanted expansive federal powers over the states. On each of these issues, he was the clear outlier. He made only a handful of speeches at the convention, which were mostly ignored. His influence on the document’s result was negligible.

And yet here he was, making impassioned arguments on behalf of a document that included very little of his ideas. The likely reason was that as a proponent of greater centralized power, he felt the constitution was an improvement over the Articles of Confederation. But this put Hamilton in a tricky spot, because the very concerns which were impeding this constitution from ratification were the fear of this heightened federal power. Soon after the document was put forth, a serious public debate began about the constitutions lack of a Bill of Rights. Listing these rights would further limit the powers of the Federal government – something Hamilton undoubtedly opposed. Yet he could not make the argument against these limits without jeopardizing support for the increased federal power. How could Hamilton argue against a Bill of Rights without further stoking the fears that were preventing the Constitution’s passage?

Frankly, he did it by lying about his beliefs. In Federalist #84, Hamilton argued that a Bill of Rights limiting the government was unnecessary, because the government could only wield the powers which were explicitly enumerated anyway! In other words, the exact opposite of what I just quoted him as saying! Not only this, but he was even brazen enough to WARN the people that adding a Bill of Rights may increase the government’s power by opening the door for more expansive interpretations of it. He wrote:

“I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?– Alexander Hamilton, Federalist #84

That sneaky bastard! In order to get his way and expand the federal government’s power during the debate over ratification, Hamilton reassured the people that explicit limits on government power were unnecessary. But once the constitution had already been ratified and he no longer needed such vast popular support, he used the lack of such explicit limits to justify expanding the government’s power, in utter contempt of those same public fears. He warned of politicians claiming more power than was explicitly granted, and then did exactly that a mere three years later! By broadening his interpretation of the constitution to justify his personal pet project, Hamilton directly contradicted the promises he’d made to the people upon ratification. It was a spineless, disingenuous maneuver with zero regard for principle and sole regard for personal gain. It renders his actions illegitimate, because they were not consistent with the terms of agreement the governed consented to. And just as with modern political flip-floppers, it eliminates any hint of credibility from his arguments.

So in addition to being wrong, Alexander Hamilton was a vain, selfish, arrogant, pompous, lying, tyrant-sympathizing dirt-bag. With that said, let’s expand on the correct way to interpret the American constitution’s delegation of power.

Why Jefferson and Madison’s arguments were right

The full text of Jefferson’s letter to Washington can be read here. Once again, I will not comb through each sentence line by line, and will only respond to the important sections. But this time, it just so happens that there are far more important sections to comb through, since practically everything Jefferson writes in this letter is pure gold.

In fact, I’m having difficulty coming up with anything to actually write here, because Jefferson pretty much covers all of it on his own. The argument he lays out in this letter is so masterful, so lucid, so eloquent, so succinct, so compelling and in such lockstep with my own opinion that any additional commentary on my part seems clumsy and repetitive. So for now, I’ll just step back and let him do the talking!

The basic premise of his message was as follows:

“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people...’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition…” – Thomas Jefferson

There were three primary places in Article I, Section XIII of the constitution where Hamiltonians tried to step beyond those boundaries. Interestingly, those are the same three places that big-government advocates today have stretched for most expansions of federal power. Those places were the power to levy taxes “to provide for the general welfare”, the power “to regulate commerce…among the several states”, and the power to make all laws which were deemed “necessary and proper” for carrying the former powers into execution. These three clauses are often referred to as the “elastic clauses”, because they are frequently stretched by politicians as justification for non-enumerated powers. But this is faulty logic, and nobody has ever exposed its faults better than Jefferson went on to do in this letter. He articulated the limits of these purportedly unlimited powers so brilliantly that my own words on the matter are not necessary. I could not have found an essay which summarized my constitutional interpretation more accurately if I wrote it myself.

Jefferson debunked the myth of the elastic clauses in the order of their appearance. First, the power “to regulate commerce…among the several states”:

“To erect a bank, and to regulate commerce, are very different acts. He who erects a bank creates a subject of commerce in its bills; so does he who makes a bushel of wheat or digs a dollar out of the mines; yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this was an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State (that is to say of the commerce between citizen and citizen), which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes. Accordingly the bill does not propose the measure as a regulation of trade, but as "productive of considerable advantages to trade." – Thomas Jefferson

A bank may facilitate commerce, or create commerce on its own, but it does not regulate the existing commerce of other parties. And even if it did, those parties would need to be conducting their commerce across state/national/Indian tribe boundaries for Congress to have jurisdiction over it.

Next, Jefferson demonstrated why the power to levy taxes “to provide for the general welfare” clause did not allow for a National Bank either:

“Still less are these powers covered by any other of the special enumerations…To lay taxes to provide for the general welfare of the United States…is to say, ‘to lay taxes for the purpose of providing for the general welfare.’ For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.

It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please….” – Thomas Jefferson

Bingo. If anything which may be argued to enhance the general welfare were authorized, then Congress has unlimited power, because you can make that argument for anything. As Jefferson wrote in his letter, “Certainly no such universal power was meant to be given them. It was intended to lace them up straitly [sic] within the enumerated powers.” The framers rejected this “universal power” by listing not only the purposes which government must pursue (which they unfortunately left broad), but the powers at their disposal for the pursuit (which they specified clearly). As such, the purpose of one authorized power does not authorize any other power just because it serves the same purpose. Jefferson describes this purpose/power dynamic clearly, while Hamilton muddles the two together under the “general principles and general ends of government.”

In this instance, the power to tax was clearly not intended as a catch all for anything they may have forgotten. Otherwise, the entire rest of the constitution would be entirely redundant and unnecessary; if the framers intended that the government could do anything so long as it advanced the general welfare, why bother listing all the things the government was allowed to do? On the contrary, they didn’t want to give the government that flexibility, because they knew that every dictator in history had justified his actions by saying things like “oh, well it will advance the general welfare.” As Jefferson put it, the people did not want their politicians to be “the sole judges of good or evil.” This is how the “general welfare” clause was explained to the ratifying conventions and understood at the time of its passage. It is the only legitimate meaning that can be applied now.

Finally, Jefferson dismissed the “necessary and proper” clause argument without much difficulty:

“The second general phrase is "to make all laws necessary and proper for carrying into execution the enumerated powers." But they can all be carried into execution without a bank. A bank therefore is not necessary and consequently not authorized by this phrase. It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the names which are "necessary," not those which are merely "convenient" for effecting [sic] the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any nonenumerated [sic] power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers and reduce the whole to one power, as before observed. Therefore it was that the constitution restrained them to the necessary means, that is to say, to those means without which the grant of the power would be nugatory."

Damn well said, TJ. Half the people who cite the “necessary and proper” clause don’t even remember what comes after those three words. The rest of the sentence is a very important qualifier on that flexibility, as the desired powers must be both necessary and proper (as opposed to necessary or proper) to execute the former powers.

Jefferson also points out that during the constitutional convention itself, the idea to explicitly include the power to erect a bank had indeed been considered and debated. But that idea was specifically rejected, because they knew this power would not be agreeable to the people!

“It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution. A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution.” – Thomas Jefferson

If the power to start a bank was intentionally left out of the constitution, then how can it possibly be argued to be constitutional? That alone is enough to render Hamilton’s entire argument preposterous.

Now, a big criticism of this letter is that Jefferson himself was not present at the constitutional convention, and did not help in framing the document himself. How, then, could he know what had taken place at the convention? The answer is that his good friend, James Madison, had played a larger role in shaping the constitution than any other single individual, and Madison kept detailed notes about each day’s proceedings. Madison essentially thought up the three-tiered system of government all on his own, and he was the one to present its earliest format to the convention. He was also deeply involved in the negotiations that brought about the final product. As such, he arguably knew more than anyone about how this system was intended to work by those who shaped it. And as it happened, Madison adamantly agreed with Jefferson’s interpretation of the constitution. Observe:

“The powers delegated by the proposed Constitution to the federal government are few and defined.” – James Madison

“[T]he government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general.” — James Madison

“With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” — James Madison

“If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” –James Madison, 1792

“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” — James Madison, 1794

"[T]he powers of the federal government are enumerated; it can only operate in certain cases' it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction." - James Madison, Speech in the Virginia Ratifying Convention, June 6, 1788.

This last quote is perhaps the most important, because the Ratifying Conventions were the place the people consented (indirectly, through their elected officials) to the constitution. Those conventions were the only thing that gave the constitution any more authority than the paper in my printer. And at those conventions, both James Madison (in Virginia) and Alexander Hamilton (in New York) reassured the people that the government’s powers were enumerated, rather than its limits being enumerated. It was with that understanding that the people consented to the document; with any other understanding, they may not have ratified it at all.

The Bill of Rights Clarification

As soon as the bank law passed, popular concerns that the federal government had indeed become too large were reignited. The public clamored for some way to ensure that their rights could not be infringed upon. It was at this time that many legislators came around to the idea of adding a Bill of Rights, which had been floating around ever since the constitution’s initial publication. Madison and Jefferson had advocated one for years, for two main reasons. Firstly, an addendum to the constitution would allow them to clarify the enumerated powers doctrine. And secondly, listing the rights of the people would limit even those enumerated powers, further restricting the government and further protecting liberty.

So, just as he had with the constitution itself, Madison spearheaded these efforts. He submitted the first written version of what would eventually become the Bill of Rights (although his version had 20 changes, only 10 were ratified by enough states to become official amendments). The last state to ratify them was his home state of Virginia, and the Bill of Rights went into effect on December 15th, 1791.

The limits which were subsequently added to the constitution were not, therefore, meant to be a list of the only things government could not do. Rather, they were designed to limit the already enumerated powers, while simultaneously reiterating that only those powers could be wielded. This was made clear in the Bill of Rights through the 9th and 10th amendments.

The 9th amendment reads “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This makes it very clear that just because the constitution lists certain powers as off limits to government does not mean that anything it fails to include in that list is fair game.

Inversely, the 10th amendment reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This only reiterates the previous conclusion: any power which is not enumerated herein cannot be exercised. Any other power can only be wielded by the state governments or the people acting freely among themselves.

With this Bill of Rights an official part of the constitution, any remaining doubt about the founders’ intentions on this issue should have been eliminated. Twice, three times, a dozen times over it was specified by both the document itself and the people most responsible for writing it. The constitution plainly and wisely stipulates that any power not specifically granted to the Federal government, could not be wielded by that government. Unfortunately, a series of horrendous Supreme Court decisions and political power grabs have trampled on this truth today. But it’s still the truth.

Monday, August 27, 2012

Evaluating the American Constitution: Preamble and Purpose

The American constitution lays out six purposes for government in the very first sentence. With those purposes counted off in parenthesis, the preamble reads as follows:

“We the people of the United States of America, in order to (1) form a more perfect union, (2) establish justice, (3) ensure domestic tranquility, (4) provide for the common defense, (5) promote the general welfare, and (6) secure the blessings of liberty for ourselves and our posterity, do ordain and establish this constitution for the United States of America.”

It is clear that the framers believed some version of those six ends could sometimes justify the means of force and coercion. What is less clear is what they meant by those ends. Unfortunately for liberty lovers like me, the terms they use to describe them are pretty vague in today’s language, particularly numbers two and five. Such broad terms seem to leave the objectives American government may constitutionally pursue open for political discretion. Was that the framers intent? Was that the understanding of the people who ratified the constitution in 1789? Did they consent to a government that could wield force on them for any reason? Or did they consent with a basic understanding of which reasons were acceptable?

The commonly understood meanings of words like “justice” and the “general welfare” have undoubtedly changed over the past 200 years. In order to identify the intended purposes for American government, we must define those terms in accordance with what they were understood to mean at the time of their ratification. Thankfully for us, the political intellectuals of that time were remarkably consistent in what they felt government’s just purposes to be. Some of these thinkers spearheaded the revolutionary new ideas which were to shape the constitution. Others helped write the document themselves, and still others merely argued for it after it had been drawn up. But all of them articulated the pervasive enlightenment ideas about government’s just role in the era. What did they say?

Perhaps the biggest intellectual influence on enlightenment political thought was John Locke. Among other important contributions to social contract theory, Locke was among the first to describe the “natural rights” to life, liberty, and property. He viewed God as the source of these rights, but the point wasn’t so much religious as it was that these rights were inherent at birth, and had no human source. Locke wrote:

“All mankind…being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”

He specified the right to property by writing:

“Every man has a property in his own person. This nobody has a right to, but himself.”

“Every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his."*

A primary purpose of government, Locke argued, was to punish those who violated those rights. In his famous 1689 work "Two Treatises of Government", Locke argued that civil society was designed for the protection of "proprius", which in Latin means "life, liberty, and estate"(also translated as, "that which is one's own"). All of the founders were familiar with Locke’s works, and his ideas had a profound influence on the principles that guided them. Indeed, when Thomas Jefferson wrote the Declaration of Independence, this was the one and only purpose which he gave to government:

“We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and that among these are Life, Liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” – Thomas Jefferson

In one of the most important founding documents of our country, Jefferson expressed the opinion of the Second Continental Congress that governments were instituted “to secure these rights”. In his 1801 inaugural address, Jefferson expanded on what this purpose ought to mean in practice:

“A wise and frugal government… shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.” – Thomas Jefferson

This was the sum of good government, meaning that it represented the whole of its parts. Jefferson also wrote extensively on the dangers of adding too many more parts to that sum:

“To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” – Thomas Jefferson

“To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.” — Thomas Jefferson, letter to Joseph Milligan, April 6, 1816

“[I believe] that the legitimate powers of government reach actions only, & not opinions.” – Thomas Jefferson, letter to the Danbury Baptists, 1802

“I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them." – Thomas Jefferson

“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.”-- Thomas Jefferson

The first sentence of that last quote is perhaps the greatest, most succinct summary of government's legitimate purpose of all time. It is clear from these writings that Thomas Jefferson did not feel that any government action which could be argued to “enhance justice” or “promote the general welfare” was legitimate. King George had argued as much about his own abuses. Rather, Jefferson specified the purpose of government in his Declaration. Governments were erected “to secure” the rights of “life, liberty, and the pursuit of happiness," because only those rights were "inalienable", and wielding force for any other purpose was "sinful and tyrannical." This notion served as the ideological basis for entire revolutionary war, which most of the constitution’s framers fought in. Six of those framers had signed that very Declaration.

The savvy observer might wonder why Jefferson chose to write “the pursuit of happiness” instead of Locke’s more famous right to property. I don’t claim to know; perhaps it was simply because it has more of a poetic, rhetorical flourish**. But what I do know is that Jefferson certainly believed in the right to property, as his quote guaranteeing “to everyone the free exercise of his industry and the fruits acquired by it” would suggest. What I also know is that almost all of his intellectual contemporaries held the same belief. Take, for instance, John Adams:

“Property must be secured, otherwise liberty cannot exist.” – John Adams

“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.” — John Adams, 1787

In the very year the constitution was written, Adams explicitly tied the term “public justice” to the protection of the “sacred” right to property. His second cousin Samuel Adams concurred:

“[It is an] essential, unalterable right in nature…held sacred and irrevocable by the subjects within the realm, that what a man has honestly acquired is absolutely his own, which he may freely give, but cannot be taken from him without his consent.” --Samuel Adams

These writings specify the purposes intended for American government at the time of its creation. These ideas have a remarkable overlap with the Libertarian principles of self-ownership and non-aggression. The authors of the constitution were ahead of their times, and had the foresight to appreciate the value of tolerance, equality under the law, and limited government.

But of course, the framers were not libertarians by the modern definition. Neither were the people of the era. Most still supported slavery, oppressing women, and lots of other things that modern liberty-lovers reject outright. No constitution could have been ratified at all in 1789 without, for instance, protecting slavery. As such, the general purposes laid out for government needed to be broad enough to include those activities. It was for this reason that the preamble presented general, vague concepts that everyone could agree on in the abstract, rather than outlining the specific objectives government was to accomplish. The result is that despite the remarkable similarities between the ideologies of the framers and my own, the preamble is far vaguer than I would like.

The problem is not the actual meaning of the preamble so much as the authors’ failure to specify that meaning for future generations. The framers’ other writings expose that what they initially intended by those words would not have encompassed many of the things the words encompass today. When the people initially consented to those words, they were not consenting to what those words mean today. Unfortunately, the text does not adequately articulate the intentions of the authors, rendering the preamble subject to abuse.

As such, the purposes listed in the US constitution are not specific enough to inhibit subjective reinterpretations and to fully protect natural rights. Therefore, they open the door to illegitimate government. I support amendments that make it more legitimate by narrowing/specifying this purpose. However, I also recognize that at present, more purposes may be constitutionally authorized than I’d like.

It is important to remember, however, that these purposes may only be pursued within the powers granted towards those ends. The framers approach to shaping those powers, and the implications on which powers can be wielded today, will be discussed in Part II.

Evaluating the American Constitution: Introduction

Okay, enough with all the hypothetical theory. Let’s get down to business, and talk about an ACTUAL constitution, eh? Our first case study in real, live social contracts in action will be the American Constitution. This is partially because it is the oldest and longest running constitution in the history of the world, which makes it interesting to investigate what’s kept it alive for so long. It’s also partially because it was the first to really articulate many of the concepts I just described, so it’s a good application of my theories. It’s also partially because I carry a copy of it in my backpack and am very familiar with its contents, so it’s the one I’m most comfortable breaking down. But mostly, it’s because I’m an American who’s subject to it, and therefore because it’s the most applicable to me. Most of what I write on this blog in the future will involve American politics, so the American constitution is the most important one to understand for my purposes.

This is going to be a lengthy and detailed breakdown, so once again I’m going to break it into smaller, more readable parts. The basic format of this post will be organized according to the four levels of constitutional legitimacy I described here. First, I’ll discuss the purpose of the American constitution as it’s laid out in the preamble. Next, I’ll discuss how the framers gave the government power, touching on its specificity, concentration, distribution, adaptability, and limits. Thirdly, I’ll discuss the constitution’s mechanisms for creating law, and the public’s input in that system. And finally, I’ll reach an overall verdict on how close the framers came to the ideal social contract I outlined, and whether I think they were close enough for me to support the document as it now stands.

Because the constitution should be interpreted according to the original meaning of the text, it’s very important to ascertain what that meaning was at the time of its ratification. What the framers themselves said in their personal and public writings provides valuable insight to that matter, and helps to understand their intentions. For that reason, I will quote both the framers of the constitution and their intellectual contemporaries extensively in this piece. These quotes provide us with more than just words of wisdom from tremendously wise people; they also provide clarity on what the words in the constitution were understood to mean when written. Since this is the only meaning the people consented to upon ratification, it is the only meaning that can be legitimately applied. 

Thursday, August 23, 2012

Updating Legitimacy: A Defense of the Originalist Constitutional Interpretation

My Ideal Constitution, Part V: Updating Legitimacy

The final issue I’ll discuss regarding an ideal constitution is what happens when it inevitably becomes less than ideal. Popular morality changes over time, even the universal morality that I claim is necessary to wield force (including, therefore, the universality of the non-aggression principle). The powers and purpose people desire for government change over time, which means so does the legitimacy of any government which does not. In order to keep our ideal government as legitimate as possible for as long as possible, we have to include some way of updating it to reflect these changes in what “the governed” are or are not willing to consent to.

The biggest criticism of my originalist interpretation of any constitution is that it impedes this progress. In order to keep the government legitimate, these critics argue, the constitution must remain a “living document.” What they mean by this is that rather than continually tinkering with the constitution’s actual text or searching for the meaning of the words themselves, government should simply “reinterpret” that text to mean whatever the people today seem to be okay with. They view debatable consistency with vague concepts to be sufficient for legitimacy, rather than actual adherence to specific instructions. The latter, they claim, can mostly be ignored.

This is a deeply flawed version of constitutional legitimacy. The most obvious problem is that if the meaning of the constitution may simply be “reinterpreted” by those in power, then it doesn’t really have any meaning at all. It means whatever those in power want it to mean. No other form of contract can be reinterpreted in this way. Could you imagine if I tried to reinterpret the text of a business contract to mean something other than what the literal text originally meant at the time of our agreement? What if I tried to convince a judge that the other party should be forced to do something against their will because my buddies and I have “reinterpreted” our agreement to mean that? I’d be laughed out of court. Why is a social contract any different?

Without popular consent or even knowledge of the change in meaning, the people’s initial consent to the original meaning is invalidated.  Since the consent to this new meaning has never been formally acquired, government becomes illegitimate. Proponents of the “living document” theory never propose any means to gather formal public input about which “reinterpretations” they consent to. If they were willing to ask the people’s opinion about a proposed change in meaning of the constitution, then they’d simply ask their opinion about an actual change to the text itself. They could propose them a choice between two different wordings, without needing to reinterpret any of it. But they’re not willing to do this because the people would not give them as much power as they’d like.

So to avoid that problem, they merely pretend that majority support for a politician is evidence that any law that politician desires, and any broader purpose that law serves, and any power it wields, must be legitimate. What they advocate is essentially a social contract determined by simple majority rule, which defeats the entire purpose of a constitution in the first place. It is a preposterously illogical standard of consent, and a pathetically inadequate defense of minority rights. Needless to say, these “reinterpretations” are only favored when unconstitutional force is being wielded on others, in accordance with their own opinion. When theirs is the ox being gored by the majority’s subjective opinion, the original checks on that majority’s power don’t seem so old fashioned.

Beyond the problematic implications of the critics own worldview, their criticism of an originalist interpretation is unfounded anyway. The originalist interpretation does not, as they allege, lock government in to the beliefs of the constitution’s original authors; it merely locks them into the original meaning of the text itself, regardless of when that text was updated. It says nothing about whether or how that text may be updated; it merely insists that if it is changed, it must be a formal and official change to the words themselves. The constitution may very well include a way to amend the original text by either striking it, adding to it, or replacing it with new text that better reflects modern sentiments.

The ways to do this can vary. Just as with law, popular input on proposed changes to the social contract is essential, but it can be either direct or indirect. The important thing is that these changes require the near unanimous support necessary to maximize government legitimacy; the same standard we used for the creation of the original social contract in the first place. I’d also be open to a system that requires different standards of consent for different types of amendments. For example, some amendments want to authorize more force and coercion, whereas others want to de-authorize existing powers. Philosophically, only the former needs to be proven as legitimate; it is impossible for inaction to be illegitimate. Other amendments are not power related but alter the structure of government, or are more administrative in nature. I don’t know the specific percentages I’d advise for either, but it seems to me that not all amendments were created equal, and not all should need an equal standard of consent.

But these are the technical details. The main point here is that even under an originalist interpretation, both the legitimate purposes and the legitimate powers of government can be updated. In regards to purpose, changing senses of universal morality can and do change the purposes which law ought to pursue. As new moral objectives become increasingly imperative, new ends may justify the means of force and coercion that didn’t before. As those notions approach the near unanimity required to justify that force, new purposes may be added to the constitution – via a formal and officially recognized amendment. Inversely, ends which used to justify the means of force and coercion may not justify them anymore. If that’s the case, the people can do one of two things. If support is sufficient, those original purposes of may be stripped from the constitution – via a formal and officially recognized amendment. But even if the support is insufficient for stripping the purpose, the people can still strike down laws which pursue those ends with a simple majority vote in accordance with lawmaking procedures.

So too can the powers granted to government for those purposes be updated. If the original ends of government are now deemed to justify more or less use of force than they did before, the power to wield that force can be either increased or decreased without sacrificing legitimacy. The only key is that in order for this to occur, it must occur via a formal and officially recognized amendment. If popular support is insufficient to add a power in this manner, then wielding the power would be an illegitimate use of force. But if support is insufficient to abolish a power in this manner, the people can still strike down laws which wield those powers with a lesser standard of support. Just because a power is constitutionally permitted doesn’t mean it must be exercised.

How does this theory play out in real life? It happens all the time. The universally accepted moral tenets of today are radically different than they were even a hundred years ago, and for the most part the law has kept pace with those changes. If we take the US constitution as an example, 27 amendments have been passed, and those amendments have updated prevailing moral opinion on things like slavery and women’s rights. And even on social changes which do not have enough support to warrant full-blown amendments, changes in law can reflect the new opinions without sacrificing legitimacy. For instance, a century ago, it may was nearly universally agreed that gay marriage, abortion, fornication, swearing in front of women, and risque clothing were so morally wrong that preventing them was a legitimate use of force. If “preventing indecency, adultery, and obscenity” were an explicit constitutional purpose of government, or were included in more general purposes, it would be constitutional for government to use its enumerated powers to combat those things. That would not make doing so justified by today’s moral standards; it just makes it legitimate at the time. But today, since those things are not legitimate, people all over the world can and do vote democratically to not exercise those powers. The system works.

The only real objection the originalist critics have to this is that the process for adding power via constitutional amendment happens more slowly and less frequently than most progressives would like. Consensus takes a long time to form, if it ever forms at all. Humans are impatient; not only do we want our way, we want our way now. This is why the temptation of wielding law is so great, because the use of force it enables us to get our way immediately. Instead of waiting for the dissenters to change their minds voluntarily, or trying to convince them, law can force them to do our bidding.

But this is an unacceptable reaction. Morally, it is wrong to wield that force without the high levels of consensus necessary to justify it. And practically, law is a clumsy and often counterproductive mechanism for bringing about that social change anyway. People do not change their minds about something because the government tells them they have to. Instead, they become even more indignant and defensive about those beliefs when their opinions are being oppressed. Law can only force compliance; it can’t force agreement with the idea. Remember when your parents always used to tell you “You don’t have to like it; you just have to do it.”? Well, that’s what government says, and people sure don’t like it. Minds are much more readily changed through exposure to freely exchanged thought and reason, because then people feel like they’re doing it of their own accord.

In conclusion, any good constitution will include a means for future generations to adapt and amend it. The ideal standard of support necessary to amend various parts of the constitution in various ways is inexact. But at the very least, this standard should be considerably stronger than the standard of support necessary to change law. And whatever that standard for official amendments is, it must actually be followed if the text is to take on a different meaning than its literal, original interpretation. Magical, subjective, unannounced reinterpretations do not count.

Wednesday, August 22, 2012

Why I Like Federalism

My Ideal Constitution, Part IV: Localized Law vs. One Law Fits All

Up until this point, we’ve said nothing about the number of people or the size of the territory being governed. Both can have significant implications for the government’s legitimacy. Naturally, the bigger the territory, the more people those boundaries will encompass. A larger number of people from a diverse variety of places will include a wider array of perspectives, values and opinions than will a smaller, more condensed group. And the more differing viewpoints are included in the populace, the harder consensus is to come by. This causes problems in countries which govern large territories and vast populations.

One way to mitigate those problems is to divide the government into multiple regional branches, with each subdivision governing only the people within its own territory. Like everything else, this has several pros and cons. One main advantage is that by reducing the number of people voting on the law, each individual citizen has a larger say in how he will be governed. For instance, if a nation with one million people vote on the law, each voter has one one-millionth of the decision making power. But if 20 equally populous regions each have a separate vote, then each voter has one fifty-thousandth of the decision making power in his region. Beyond simply voting, local government means there are more lawmaking positions to fill, and fewer candidates eligible to fill each slot,  which gives people a greater opportunity to run for office or become otherwise engaged in the political process. Government becomes more accessible to the average person, and this enhances political efficacy. Secondly, localized government maximizes the number of people who get their way, because it enables different regions with different preferences to each get what they want. Unlike in a one-government system, disagreeing factions are not forced to compromise or concede to the stronger group. Instead, they can each get their way without overruling the other. This also allows people to “vote with their homes” by moving to the regions which best suit their personal preferences. And beyond mere opinion, a third benefit of local government is that some solutions will just objectively work better in some places than in others. This could be due to culture, industry, economics, or any number of regional factors, but regardless of what the reasons are, people from the region affected are much more likely to understand those factors than are people from other places. One centralized authority usually cannot account for these regional nuances when shaping law for the nation at large. Localizing law keeps the lawmakers in tune with the situation on the ground in the places they govern, and this makes government more practically effective overall.

A fourth advantage of this solution is that it enables the regional governments to serve as “laboratories” in which different policies and laws can be experimented with. One government can only pick one policy at a time, and the results are often difficult to evaluate since it’s unknown what would have happened in the alternative; if the law had failed and/or a different policy were adopted, would things have turned out any better or worse? Who knows? But if several similar regions can adopt different policies at the same time, it’s easier to identify which policies work and which don’t over time. Finally, yet another advantage of this divided government is that is serves as another way to separate the government’s power without reducing it on sum. This enables government to have the power needed to fulfill its duties while still preventing too much concentrated power from falling into the hands of any one person or group. I talked a lot about why this is good in Part II of this post. By restricting the authority of each lawmaker to the region in which he governs, it makes it harder for misguided or corrupt politicians to screw things up for everyone.

That’s a lot of advantages, but it’s not a perfect solution. One criticism of localized government is that if the regions are to remain one country, they must still have a single governing body over top of them, which causes confusion because the people are now subject to two separate authorities at the same time. That means those governments have to either share the power, or split the power. If they share it, it can be challenging to determine which should overrule the other in the case of disagreement. If they split it, it can be challenging to determine which authority gets which power. Overlapping powers also makes it more difficult to determine accountability. If something goes wrong, the people can’t be sure which government is to blame; when things are going well, they can’t be sure which gets the credit. Another disadvantage is that increasing the number of politicians to keep track in turn increases the duties of the citizenship. Navigating this tangled mess of governing structures and educating oneself on all the different candidates running for all the different positions can be a daunting task. This “election overload” can lead to apathy, uneducated voters, and low voter turnout.

But the primary objection to this system is that many people are simply uncomfortable with the lack of a single, national policy on the issues important to them. Most of our moral opinions don’t recognize artificial human boundaries; if something is wrong in one place, it’s equally wrong in another. When citizens have different sets of freedoms depending on where they reside, inequality of rights is the result. Many people view that as an injustice.

Many people involved in politics have the mindset that there can only be one right answer by which everyone ought to abide. They feel that the job of government should be to figure out what that right answer is, and pursue it as fast as possible. These people naturally have opinions as to what those right answers are, and so they trace the “progress” or “advancement” of society in terms of how close it becomes to their preferred solution, and how long that process takes. When some parts of a country get close to their answer but others don’t, they become frustrated and impatient with the stragglers. This is perhaps the primary objection to local governance in modern politics; the compelling urge to force one’s own opinion on the localities that disagree, regardless of the resident’s opinions.

I’m not one of those people. They are partially right that injustice can (and often does) occur when rights are applied unevenly. But unfortunately, there’s no way of objectively determining how to justly apply those rights across the board. National uniformity in law enhances equality of rights, but it does not necessarily enhance justice; the whole nation could just be equally unjust. For those who seek progress, I’d point out that even when permanent long term social shifts are occurring, progress needn’t be realized all at once. Some regions are more resistant to change than others, and yes, that does mean universal change may take longer. But it also means that regional change will take less time, because the more “progressive” localities don’t need to wait for the others to catch up to start doing things their way.

For this reason, I’m sympathetic to the arguments favoring localized government in each region. It’s not that this system is necessarily any better at protecting liberty; a majority of 75 people can take away your rights just as easily as can a majority of 75 million people. I just feel that on whole, the benefits outweigh the downsides.

Direct Democracy or Representative Republic?

My Ideal Constitution, Part III: Method of choosing who governs

Once the structure of governing bodies is in place, we have to devise a way to fill those bodies with actual people. It is almost universally agreed that the governed should have some say in who those people are. The debate here is just how much say they should have. Advocates of giving them direct power argue for a more of a democracy; advocates of giving them indirect power argue for more of a republic.

In a pure democracy, there are no middle-men representatives, and every decision is simply put up to a majority vote. This means that the majority always gets its way, but it’s also practically impossible to get things done in countries with lots of people. Less pure forms of democracy do have elected representatives, but they are tied to the popular vote very very closely, and prevented from using their individual discretion. For instance, they may be required to vote in accordance with the official position of their party. Democracy advocates also favor shorter term lengths, which dissuades politicians from breaking from popular opinion. Essentially, varying degrees of democracy correlate with how likely the majority is to get its way. The more power the people have to choose their lawmakers, the more power they have to shape the laws themselves.

This is simultaneously democracy’s biggest advantage and its biggest disadvantage. The upside is that the majority is heard. Popular input is taken into account, which means whatever the government does is favored by most people.

The downside is that oftentimes, the people don’t know what the fuck they’re doing.

As the length of these blog entries should indicate, governance is an incredibly complicated matter. Sound, just, open-minded, legitimate and wise governance requires levels of knowledge, expertise, intellect, attention, and depth of thought that most people are simply unable or unprepared to give it. You can’t blame them! People have lives to live! They have their own bills to pay, jobs to do, families to raise, and hobbies to pursue. Even in a highly educated and literate nation like our own, not everybody can be informed enough to make wise policy decisions. Too many people are too ignorant, too preoccupied, too intolerant, too fickle, and too apathetic to be entrusted with complete, direct, and immediate control over how the government should operate. It’s not elitism, and it doesn’t mean they’re inferior people. They’re just less qualified people.

Modern polling only backs up these claims. Upon request, alarmingly high percentages of Americans were willing to sign petitions to “Get the government out of Medicare!”, “End women’s suffrage!” or “Keep Dihydrogen-Monoxide out of our water supply!”. And the bigger the government becomes, the more and more complex these decisions become. For instance, take food regulations. How are everyday people with jobs supposed to know how to vote on a bill that, say, adjusts the amount of rat feces permissible in one square-meter of rice? There are millions of technical details on the minutiae of government regulations that only experts are qualified in dealing with, and only the experts should. It’s impossible to disseminate the information necessary to make good decisions on these things to the entire populace, so indirect governance has a huge advantage here.

Republics are founded on the idea that the most qualified people should be the ones calling the shots, and that they should be free to use their own discretion on how to call them. While this should be done with public input, the power of that public input needs to be checked, just like the power of all other government bodies. If 1000 everyday people were to take a vote on a very challenging, probing, and important issue, they may or may not make a wise decision. But if those same 1000 people were to instead vote on who the 100 smartest and most knowledgeable among them were, and those 100 in turn voted for who the 10 most qualified among them were, and those ten took a vote on the same question, the decision reached by the 10 would probably be a better one.

It is for this reason that I generally prefer keeping the power of the people on specific lawmaking questions indirect. I recognize that there are downsides to this, and that a balance needs to be struck. One downside is that indirect power concentrates the public’s input into the middle men, and as I described earlier, concentrated power can be scary. Those middle-men are much easier to buy off than are the populace at large. However, they’re also more difficult to fool via propaganda, since elected representatives are usually much more informed and politically involved than the population at large. I’m willing to accept that trade-off. A democratic republic that checks popular input allows the majority to be heard most of the time, but also allows the experts to overrule them when necessary. Considering how objectively wrong the majority can often be, that's a good thing.

Power structure and concentration

My Ideal Constitution, Part II: Power structure and concentration

Another issue regarding power is deciding to whom or what the power should be given. Throughout my writings I’ve referred to “the government” in a very abstract, undefined way. But today we get to define that word a little more precisely. What person or groups of people get to call the shots, and which shots do they get to call?

Of course, there are dozens of ways to title the people who have the power. A political decision making body of one person can be called a king, queen, emperor, czar, president, chief, boss, head-honcho, grand poo-bah, etc. A decision making body of a small group is usually called a council or a board, while a larger group is called a parliament, senate, house, congress, or assembly. But much more important than the names we give to these bodies is the number of bodies we choose to have, and how we divide the powers between them.

The competing factors in play here are the speed and efficiency with which decisions can be made vs. the safety, quality, and legitimacy of those decisions. The fastest and least “messy” way to govern is to concentrate the power into one decision-making body. The fewer the number of people in that body, the faster decisions can be reached: for example, in a monarchy, only one person needs to make up his or her mind about what to do. When speed and flexibility is of the essence, government can’t afford to have too many cooks in the kitchen. An individual or small group can respond and adapt to conditions on the ground much more fluidly than can a large group or several groups. Concentrated power also has the added benefit of increased continuity in the law. There are usually a wide range of opinions on how a problem should be addressed, but sometimes in order for any solution to be effective, it has to be handled all one way or all another. When power is split between two disagreeing factions, the result is often that neither opinion gets fully executed, and the compromise winds up being a half-assed middle ground that neither side really likes. As General Patton once said, "A good plan implemented with vigor now is better than a perfect plan executed next week." Concentrated power enables the government to make a firm decision and go with it.

The opposite of concentrated power is separated power, which also has several advantages. For one thing, separated power does not put all the eggs in one basket. Just because decisions can be reached speedily does not mean they are good decisions; slowing things up by forcing deliberation and compromise prevents rash and impulsive decisions. Usually, however, decisions are not objectively good or bad, but rather highly opinionated. This brings us to the primary advantage of separated power: enhanced representation and protection of minority rights. By giving power to a larger number of people, you increase the diversity of viewpoints represented. This not only protects minority rights, but advances the national discussion and forces lawmakers to confront, persuade, and bargain with their opposition, instead of simply ignoring them. This also enables compromise, which often maximizes the number of people for which the solution is at least acceptable. While it is true that separated power makes it more difficult for government to get things done, that can be a good thing, because we don’t know if what it’s getting done is good or bad! If it the action under consideration is truly a good idea with strong and reasoned support, it should win out in the long run. But a government that can do much good quickly can also do much bad quickly, so it is important that we check its ability to do the latter. Divvying up the power between several groups is a great way to do that.

So which is better? It depends on the task, but generally, libertarians like me prefer separated power. This is primarily because overly powerful people scare the bajeezus out of us. Separated power is more conducive to gridlock, and gridlock is more conducive to nothing getting done; generally speaking, I’m just fine with that! Because I’m so suspicious of the temptation to over-govern, I appreciate the novelty of pitting those ambitions against one another to mitigate that danger. Because I’m so cynical about the government’s intentions and overall effectiveness, I want the politicians to take their time and make absolutely certain that whatever they’re planning to do is a good idea. If that means the people who disagree can hold things up, so be it. If any substantial number of politicians disagree that force should be wielded in the manner prescribed, then chances are there is a substantial portion of the populace that feels the same way. Even if that group is a minority, their objection would decrease the legitimacy of the force being wielded. Maximizing consent on what is done requires the agent to err on the side of inaction.

However, I am willing to admit that there are certain powers which ought to be concentrated for rapid response, differing opinions be damned. The power to wage (but not to declare!) war is a perfect example, because lives are on the line and time is of the essence in saving those lives. General George S. Patton once wisely observed that in battle, “A good plan violently executed now is better than a perfect plan next week.” If large groups of argumentative people were put in charge of formulating military battle tactics as the enemy approached, it would be a disaster. A stern chain of command with individual decision makers is preferable in these situations; it just makes it all the more important that those decision makers be qualified for the job.

General Powers vs. Specific Powers

My Ideal Constitution, Part I: General powers vs. specific powers

One obvious question regarding power is deciding what power the government should have. Or, viewed another way, what power should the government not have? These two competing perspectives have radically different implications on the scope of constitutional power. Should we list specifically what things the government can do and prohibit it from doing anything else? Or should we list the things government can’t do, and permit it to do everything else?

The advantage of the first approach is that it makes it far more difficult for government to wield illegitimate force, even if it does so in the pursuit of a legitimate objective. As I said before, only some means justify the ends of governance, and those means are different for different people. If the specific things government may do are enumerated in the constitution, then the people consenting to that constitution know full well what they’re signing up for. Enumerated powers grant the people greater precision in determining just how much license they’re willing to give the government against themselves. Another perk is that it’s more difficult for the government to abuse these powers by using them for unconstitutional purposes. My method of constitutional interpretation places the burden on lawmakers to cite both the constitutional power and constitutional the purpose of their law. But if any power besides those prohibited is permitted, then politicians really only need to cite the law’s purpose. Lowering that burden makes it easier for politicians to cite one purpose for justification, when the law is actually designed with another (potentially unconstitutional) purpose in mind. Restricting the means available to government to only those powers which are directly conducive towards the purpose makes illegitimate law much harder to justify.

The advantage of the second approach is that it gives the government greater flexibility in the options at its disposal, enabling more creative problem solving than the first option does. A government with enumerated powers can only use so many tools, and it’s possible that none of them are the right tool for the job. But if government can do anything except the prohibited things, it can build its own tools within those regulations. This allows it to custom tailor those tools to suit the job at hand. This also makes it easier for government to rapidly adapt to changing circumstances over time in response to advancements in technology or society in general. Opening up the means accessible to government makes it easier to attain the ends, and therefore easier for politicians to do the job they’re charged to do.

Presuming, of course, that that’s all they try to do.

Naturally, my libertarian perspective is deeply suspicious of that presumption. Every lesson of history tells me that people with power generally use it for what they want, rather than for what everybody wants. The temptation to over-govern, even with good intentions, is simply too great. It’s just human nature. The combination of strong personal opinions and the ability to impose those opinions on others is often too strong for us to resist. Therefore, I prefer the first option. I don’t trust politicians with the extra flexibility to shape their own powers, because I’m suspicious of both their ability to wield it effectively and their motives for wielding it.

Besides, even if it is eventually determined that new powers really are necessary to serve legitimate government functions, and wide consensus exists on this need, then the constitution can always be amended to add new tools anyway (see part 4). Enumerated powers do not permanently prohibit the government from doing anything else, they simply force the government to get permission from the people before they add a new power to their arsenal. This is much more in line with my philosophy that government has the moral burden to prove its use of force is legitimate, rather than the people having the burden to prove the use of force is illegitimate. So my ideal constitution would definitely list the specific things government can do – prohibiting it from doing anything else – rather than listing the prohibitions and permitting the rest.

My Ideal Constitution: A five part breakdown


So, now that we know what makes a constitution legitimate, let’s figure out how to make one. What would an ideal social contract look like?

Let’s go back to the four levels of government I described last week. Of the four, only the first two are determined by the constitution: purpose and power. I’ve already written extensively on what the ideal purpose of government should be, arguing for the protection of the universal rights to life, liberty, and property while wielding the minimum amount of force and coercion. Since only these rights are universal and the use of force to restrict them is universally held to be wrong, this would maximize the legitimacy of our government by minimizing those opposed to the force we wield. So we’ve covered the first level.

What we need to discuss in greater detail is the second level: power. Specifically, what powers should we give government to enable it to best serve that purpose? And how do we shape the bodies that will determine how and when to wield those powers? I’ve identified five issues regarding government power that are important to consider in shaping an “ideal” constitution. Each issue can be addressed by several competing approaches to power, and each approach has its pros and cons. However, I feel that some solutions are preferable to others towards the end of protecting liberty, and it’s important to explain why.

I’ve decided that these five issues are unique enough to discuss individually, as a separate topic, devoting one post to each. But taken in conjunction, the next five blog entries will illustrate some of the most important factors to consider in forming an ideal constitution. If you want to read all five at once, either scroll up the page or use the hyperlinks I’ve provided below:

Part I: General powers vs. specific powers

The Philosophy of Liberty

I just found an excellent 8 minute video that succinctly and clearly summarizes the rights I've written about so extensively this summer. However, it justifies those rights in a more traditional libertarian way than I did, using the principle of self-ownership. This video does not address any situation in which the ends may justify the means of breaching that principle, and therefore seems to hint at anarchy (which I do not support) as the only way to achieve a "free society". There are also arguments in this video that I have minor qualms with or find to be inadequately well explained, but that's to be expected when you're trying to keep the video concise. Overall I still found it to be a fantastically lucid and easy to understand explanation for the basic libertarian view of the world.

Sunday, August 19, 2012

Why Tacit Consent is Bullshit

The standard of constitutionality I laid out in my last post is difficult to reach. It does not grant politicians as much flexibility as they would like in shaping policy, because it forces them to cite a specific chain of authority instead of a general concept. Moral imperialists want to wield all kinds of powers for all sorts of reasons, regardless of whether those powers or reasons have enough support to be enumerated in the social contract. But naturally, these big government supporters don’t like to view such powers as illegitimate, because that would make them the oppressors. So in order to expand the label of legitimacy to cover more things, they’ve have attempted to change the definition of consent. Doing so enables them to broadly reinterpret constitutions in all sorts of loosey-goosey ways, with the ultimate objective of legitimizing government activity mentioned nowhere in the original social contract. This post will debunk one such fallacy – the myth of “tacit consent.”

To begin, I’d like to make an analogy. Let’s imagine that Sarah is an attractive twenty-year old college student. Like most girls her age, she likes to party every now and then, and the multitude of frats on her street give her ample opportunity. One night, she feels like a good time, so she puts on her sexiest black dress and goes to a college party with her friends. After a few hours and many drinks, she meets an attractive guy named Mark. They start flirting and dancing and feeling each other up. One thing leads to another, and before long Sarah finds herself making out with Mark in an upstairs bedroom.

Now, imagine Mark were to shove her onto the bed, hold her down, undress her and penetrate her. Sarah does not want this, but physically she is not strong enough to get him off her, and mentally she is too shocked, confused, and terrified to verbally protest. By definition, that would be rape, because Sarah never consented to having sex. It would not matter that she hadn’t explicitly told him no. It would not matter that Sarah had given every indication of being flirtatious before that point. It would not matter if the frat had a reputation as a hangout for easy girls, or that most girls would have loved to have sex with someone as attractive as Mark. It would not matter that Sarah had worn a skimpy dress, or that she’d danced with him, or that she’d made out with him. Any of those things may have initially implied she might be open to having sex, but since she never explicitly said that she did, Mark had no right to assume it. He certainly had no right to forcibly hold her down on the bed and take her. It would be preposterous to say that she had consented to that aggression.

Now imagine that instead of remaining silent in terror, Sarah had clearly and explicitly told Mark to his face that she definitely, assuredly did not want to have sex with him. Imagine that he raped her anyway. How much more preposterous would it be for Mark to claim she had consented in that situation? If what Sarah’s location, outfit, and recent actions were insufficient to assume consent even in the absence of her explicit protest, then how much more absurd would it be to say that those things overrode her explicit protest? How much less of an excuse would Mark have to even pretend confusion about Sarah’s intentions?

Well, what big-government advocates need to realize is that no means no.

Consent is only consent if the person consenting does so explicitly. There is no such thing as implied consent, and there is absolutely no such thing as consent against one’s will. It runs contradictory to the common sense definition of the word for somebody to “consent” to something unwittingly. And yet that’s exactly what a huge number of political theorists are willing to pretend in order to make big-government seem more legitimate than it really is. They practically bend over backwards to accommodate their personal favorite government programs. They jump through hoops to justify the idea that failure to remove oneself and one’s property from an area is the same as actively submitting to the government which claims that area. The term they use for this preposterous notion is “tacit” consent (sometimes it’s also referred to as “implied” consent).

The theory goes like this. When a constitution is initially ratified by the people, its legitimacy can be readily measured by the people’s decision to ratify it. Whichever people accept the social contract, submit to the constitution’s authority and agree to be citizens of the new nation have formally given their consent to be governed. The more of those people there are, the more legitimate the government is. However, the trouble is that subsequent generations remain subject to this same constitution, while never having given their official individual consent to the government’s authority. It is often inconvenient and impractical to formally ask each person if they accept the new government’s authority or not. But more tellingly, it is dangerous to those in power to give the newly governed a real choice in the matter. Carl Watner from The Journal of Libertarian Studies explains how statist apologists responded to this problem:

“Many political theorists were caught on the horns of this dilemma. On the one hand, they believed in government by consent and in individual rights, but on the other, they were not prepared to accept the anarchist implications raised by either Filmer or Godwin. In order to try to salvage their own position, thinkers like John Locke developed and relied upon the doctrine of "tacit" consent to prove that existing governments did in fact rest on some sort of consent. "Tacit" consent meant that one accepted the government one lived under simply because one continued to live in the geographic area over which it maintained jurisdiction. Owning property according to governmental law and using government services of one sort or another indicated one's support. "To trace the history of the tacit consent doctrine is to trace"  the "tortuous  route whereby political theorists...attempted to void the anarchistic implications" of their consent doctrine.”

So, the theory goes that anybody who doesn’t physically leave the country has “tacitly” consented to live under that government’s authority. Simply assuming that the newcomers consent automatically is much more convenient to those who don’t want their power delegitimized. Unfortunately, it also defies logic and principle.

The most visible form of tacit consent theory in modern political debate is the classic line that “well, if you don’t like the law, then why don’t you just move? If you don’t want to be a part of our country, then just get out!” In case you haven’t picked up on it already, I think that argument is utter bullshit. Fellow liberty-lover Tom Woods agrees with me, and explains why very well:

So if tacit consent is baloney, then how do I respond to this dilemma? If any entity that governs without consent is illegitimate, and tacit consent does not count, then how can governments remain legitimate when governing subsequent generations? The trick, as I’ve explained earlier, is to keep the constitution strictly in line with the prevailing universal morality of the time. I recognize that it is impossible for government to get each and every single person to consent. But what separates me from most political theorists is that I’m comfortable with the logical consequence of that recognition: it is impossible for any government to be fully legitimate. That’s okay, and it doesn’t mean anarchy is the only option.

Illegitimate use of force on others is very bad, but as I’ve written extensively in prior blogs, it can sometimes be justified. What big-government backers refuse to admit is that it can only be justified to prevent an even larger initiation of illegitimate force on others, and that this severely limits the things which it is moral for government to do. Since mere residency in a place does not count as consent, governments really do have to whittle down their programs to the universally consensual parts. And if they don’t, people who object have no moral responsibility to obey the law, whether or not they are willing to move.