Thursday, December 03, 2009

What the Constitution Really Means Today

This post on the Politics & Prosperity blog presents some thought provoking ideas about what comprises real constitutional law. The author, who lists only the name of Thomas, quotes GMU law professor Randy Barnett quite extensively. Barnett is noted for 2003 book, Restoring the Lost Constitution: the Presumption of Liberty.

As I understand it, the basic idea presented by Thomas is that the Constitution is what it says it is: the “supreme Law of the Land” (Article VI), and is to be taken seriously per its original intent. That is, all legislation and court rulings relative to the Constitution are inferior to the Constitution itself as originally interpreted.

As one writer put it, the Supreme Court offers opinions. It is not a Supreme Council of Ayatollahs whose writings we must regard as sacred or even on par with the language of the original document (as amended). As Barnett puts it in this post,
“Assuming that Supreme Court precedents constitute "the Constitution" empowers long dead judges to rule us from the grave. Sorry, that is hyperbole. It allows the opinions of justices to trump the meaning of the written Constitution.”
Our Illegitimate Government?
Thomas makes the case that most of our nation’s laws are essentially unconstitutional. This, he asserts, renders the governments that create, sustain, and enforce these laws illegitimate, since they are enemies of the Constitution. He writes:
“It is entirely reasonable to think of America’s present governments — federal, State, and local — as occupying powers. We might just as well have been invaded by a foreign power that chose to abide by our electoral rules, then substituted its own laws for what, until then, had been America’s more-or-less constitutional ones.”
In his book, Barnett takes a somewhat different tack in Part 1. He asserts, as far as I can grasp it, that no legitimate basis exists for the Constitution to be binding on those that were not a party to its adoption. In this view, no one alive today could be legitimately bound by the Constitution.

This is not necessarily a new line of thinking. The 19th Century classical liberal philosopher Herbert Spencer argued in his 1851 treatise The Right to Ignore the State that without a truly legitimate method of opting out of the state, it cannot be presumed that the governed have consented to the state’s governance.

The great claim of democratic government is that government derives its legitimacy from the consent of the governed (not from some farcical aquatic ceremony). But if the government has provided no other methods for truly effective and legitimate dissent than to leave the jurisdiction or to become a criminal, the citizenry cannot be considered to have consented. It does not matter that most choose to comply with the whims of government rather than be branded criminals. Tacit compliance does not imply actual consent.

Democracies, Republics, and Votes
Democratic forms of government, moreover, lend tremendous validity to the whims of the majority. In §4 of his treatise, Spencer argues that this is simply an attempt to interpret literally the phrase “the voice of the people is the voice of God.” It transfers “to the one the sacredness attached to the other” and implies that there can be no appeal to the will of the majority.

The great virtue of republican forms of government is supposed to be the balancing of the desires of the majority and the minority, ostensibly through voting for representatives of various branches at various levels. In §5, Spencer questions the legitimacy of the vote as a substitute for consent.
“Perhaps it will be said that . . . the citizen is understood to have assented to everything his representative may do, when he voted for him. But suppose he did not vote for him; and on the contrary did all in his power to get elected someone holding opposite views — what then? The reply will probably be that, by taking part in such an election, he tacitly agreed to abide by the decision of the majority. And how if he did not vote at all? Why then he cannot justly complain of any tax, seeing that he made no protest against its imposition. So, curiously enough, it seems that he gave his consent in whatever way he acted — whether he said yes, whether he said no, or whether he remained neuter! A rather awkward doctrine this. Here stands an unfortunate citizen who is asked if he will pay money for a certain proffered advantage; and whether he employs the only means of expressing his refusal or does not employ it, we are told that he practically agrees; if only the number of others who agree is greater than the number of those who dissent. And thus we are introduced to the novel principle that A’s consent to a thing is not determined by what A says, but by what B may happen to say!”
Besides, it is obvious that the amount of control you exert over government through your vote (or even through all of your political activities — unless you’re one of the elite few) is wholly disproportionate to the level of control government exerts over you. That’s what happens when government isn’t strictly limited and kept in check.

Though the technical origins of the concept may vary, it would seem that Thomas, Barnett, and Spencer all drive to the inescapable conclusion that our current governments at almost all levels in the U.S. rule over us illegitimately. Thomas calls for widespread “legitimate acts of civil disobedience” against these illegitimate governments. Trivial acts such as breaking the speed limit accomplish nothing, he claims. But as for substantive acts, he leaves that up to the reader’s imagination.

What Makes Government Legitimate?
This brings up the question of what constitutes a legitimate government. I read through a broad variety of different types of works to address this question. There were many varied takes on the matter from various policy standpoints. But most of them ultimately came more or less down to the same concept: That government is legitimized by the fact that the overwhelming majority of the people in a particular geographic area recognize a particular government as legitimate.

Acceptance is a much lower standard than the consent standard discussed above. In effect, a government is considered legitimate as long as most people go along with its edicts without significantly rebelling. There is no presumption of a legal foundation or absence of tyranny; no requirement for a legitimate and effective dissent mechanism.

In a twist on the phrase “the voice of the people is the voice of God,” this definition is more like, “the voice of the elite ruling class is the voice of God, as far as they can push the envelope without the people rebelling.” In essence, the absence of rebellion denotes legitimacy. That’s a pretty low bar.

The Shocking Reality
While many would recoil at such a definition, I think that it is representative of current reality. Think about it. While almost everyone is unhappy about the government in one way or another, and some are very dissatisfied with certain features, few seriously think of the government as broadly illegitimate.

Per this statist definition, the Constitution was merely an agreement by which the U.S. Government became recognized as the legitimate national government. Once that was accomplished, the document had served its purpose. Thus, the government is now free to ‘interpret’ the Constitution any way it wishes to meet “modern needs.” There is no need to amend the document when the government can simply do whatever it wants as long as the people don’t rebel on a significant scale.

As appalling as I find this low-bar definition, I conclude that it represents the way things really are. Few would give any thought at all to Thomas’ call to substantive and meaningful civil disobedience because they accept the government as legitimate. To most, any tyranny we live under is either survivable or is nothing that can’t be fixed without a little tweaking. They sense no systemic failure.

I have studied the Constitution and have seen its wisdom and follies. Overall, I consider it a remarkable legal charter for our nation. But when it comes to the way things are really done today and what is generally considered legitimate, the Constitution is essentially meaningless. I do not think that it has to stay that way. But that is another post.


Unknown said...

I have drawn the same conclusion - the Constitution is theoretically the supreme law of the land but is functionally meaningless and will remain functionally meaningless until our society begins to treat it like the supreme law of the land.

As I read your post I got a new concept of what "originally interpreted" means - it does not mean as the original writers would interpret it, instead it means as the original text can be interpreted without looking through the lens of some other law or legal precedent.

Scott Hinrichs said...

Actually, I believe that original interpretation embodies the original understanding of those that framed and approved the law, untainted by subsequent legal manipulations other than actual approved amendments.

Every other legal contract and document in this nation is governed on the basis of its original meaning as understood by the parties involved in the original contract. If we were to depart from this standard, it would cause chaos in both civil and criminal courts. It would result in chaos in agreements of all kinds, ranging from the biggest business contracts to automobile loans.

Why should our nation's foundational contract be treated to a lower standard than these lesser contracts?

Charles D said...

It is indeed a very low bar, and if that is the test of the Constitutional government's continued legitimacy, then we are in deep trouble - and I think we are.

We are, IMHO, at the point with our government, as Jefferson so eloquently stated, " is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

Unfortunately unlike the late 18th century colonies, we are a huge and very polarized nation. If we decided to substantially amend or replace the Constitution, I sincerely doubt we could make it through that process and remain whole. We must then question whether the preservation of the union is more important than our safety and happiness.

Unknown said...

Perhaps I misstated. I agree that the understanding of those who originated a law (Constitution or otherwise) is an important component of original interpretation. I guess my point was that insofar as there is any question the actual text of the Constitution supersedes any other law or precedent that we might currently use. Right now we have judges that will tie the Constitution in knots in order to justify a treaty or they will treat a precedent as sacrosanct while ignoring the document that their precedent was supposed to be based on in the first place.


If the time has come to alter or abolish the government (I'm not committed to that yet) perhaps we should consider the possibility of not remaining whole. Reach and I have participated in discussion in the past about whether a division could ever be peaceful, but if we really do feel it is time to start afresh with such a polarized nation it might be best to allow for the possibility of letting opposing groups go their separate ways (that would be messy, but it might be best).

Scott Hinrichs said...

While the nation has a fairly significant ideological divide, I think that most citizens are nowhere near the point that they believe that breakup is imminent or would be beneficial. Only people in certain segments have given it any thought at all.

It is important to realize, however, that things can change rapidly. Prior to the passage of the 1765 Stamp Tax, almost nobody in the American Colonies had given any thought, serious or otherwise, to disassociation from Britain. 11 years later, America had declared independence and was at war with Britain.

Charles D said...

David, I certainly agree that the nation remaining whole is not necessarily a good thing. I'm sorry I missed your earlier discussions on the topic.

We appear not to have been able to realize the dream of a more perfect Union, and perhaps it is time to abandon it. By the way, I agree with your assessment of the judicial branch's overreach. I imagine we might choose different decisions as evidence for our position, but conceptually we agree.