Friday, January 7, 2011

Time Horizons And The US Consitution

FLG doesn't want to push this too far, but Mark Thompson responded to a comment by LarryM over at LOG that brought me back to those damn Time Horizons again. Here's the comment:
What’s the positive symbolic value [of reading the Constitution], anyway? …Does anyone think that we’re REALLY going to get there by a better understanding of the limits of constitutional government?…

Let me expand upon this a bit. Three points:

(1) In the abstract, the only way to have a small government nation over a long period of time is to have a populace who believes in small government. A narrow constitution is secondary to this goal, not primary – i.e., it can prevent the passions of the moment from expanding government, and it can reduce the ratchet effect of such expansions becoming precedents for further action. But no constitution, in the long run, can prevent the majority from imposing their will – if that will is for big government, ultimately that will prevail.

(2) In the contemporary U.S., constitutionalism is, on a purely PRACTICAL basis, not a serious adjunct to smaller government. You have to convince the people. …

(3) Parenthetically… reading the constitution as a libertarian document is a mistake. Read textually, it provides a more cirumscribed role for government, and likely the founders would be surprised at the size and extent of 21st century government. But the libertarian position was the articles of confederation.

All things being equal, at any point in time, the Constitution, which is merely words on paper, is less important than the will of the people. If a vast majority of the people want something, then the Constitution will be amended or as seems to be the case more recently ignored. Well, not ignored, but reinterpreted in light of contemporary circumstances, which for FLG means ignored.

But here's the thing. Over the long run, FLG things having a written Constitution does matter. We aren't arguing over abstract principles, but actual words. Even if there is a whole bunch of jurisprudence based upon the seven words "To regulate Commerce...among the several States" we are still arguing about the meaning of seven specific words. This grounds the debate at least a little bit. And Mark is correct to say that in many cases the text is absolute and specific, particularly in the Bill of Rights.

So, yes, FLG agrees that the important thing is to convince the people, which is why FLG hates the strategy of using the judicial system to press for new rights. Far better to convince the people because the right will be on stronger ground over the long run, than to have it created by judicial fiat, even if that is more expeditious.

But it is incorrect to dismiss the Constitution as irrelevant. Those words mean something, even if we cannot always agree on what precisely that meaning is. It's important that there's not simply an abstract right to free speech, but an absolute and specific prohibition that "Congress shall make no law...abridging the freedom of speech." Having words down on paper, specific words, helps over the even longer run than just convincing the people.


Mark Thompson said...

Just to clarify - and I'm not sure if you were implying otherwise in any event - I think Constitutions and/or things like the Magna Carta are important foundational instruments, and necessary foundational instruments, both in the short run and the long run, and for precisely the reason you state here. It is important to know in whom the Executive power lies, even if the contours of that power are poorly defined or subject to numerous interpretations. it is important to have at least some words (and the more, the better, if the goal is to limit power) that describe the limits of that power even if the meaning of those limits is subject to debate. So Constitutions or their approximate equivalent are essential for creating frameworks and starting points within which a polity can operate and debate; they are not unassailable bulwarks against change and for liberty. I nonetheless still favor the use of the judiciary where legislatures are too slow to act or where legislatures overreach, but that's another topic altogether.

Mark Thompson said...

Forgot to add - the title of my post could pretty easily be construed as suggesting that Constitutions are meaningless. This is because I suck at post titles.

FLG said...

I disagreed more with the commenter than you.

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