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.

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