Wednesday, August 22, 2012

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.

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