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Samizdata quote of the day

No legal document can save a society from appointing its own slave masters if enough people are determined to do so. Laws alone are not enough.

– Perry de Havilland, discussing constitutions.

15 comments to Samizdata quote of the day

  • Tedd

    The empirical evidence certainly seems to support that position!

    The situation with Canada’s constitution is instructive. We only adopted a formal constitution in 1982 (though common law, the British North America Act, and the Bill of Rights together formed a de facto constitution, prior to that). By 1986 the supreme court had decided that it was impossible to understand the original meaning or intent of this document, even though every one of its authors was still alive and available to testify before the court! What this tells us is that the court never took seriously the idea that the constitution was a statement of principles that it (the court) was duty-bound to apply. The court (and therefore the legislature) is limited only by their creativity in reading into the constitution what would need to be there to authorize any action.

    Pragmatism is always happy to step in when principle falters.

  • RRS

    As a bit of “self-promotion” of views on this very topic, I will attempt a link to the comments under John O. McGinniss’ 7/4/2014 post:

    Reconciling “Inalienable Rights” and Government by Consent.

    Which appears currently at libertylawsite.org/

    Sorry, might not have sset the link, which is:

    http://www.libertylawsite.org/2014/07/04/reconciling inalienable rights and government by consent

  • RRS

    Link works

  • Fraser Orr

    What Perry says is certainly true, after all a tyranny can just ignore the document.

    However, I think there is something else that is important there. I am reminded of one of the few sensible things JFK said: “Those who make peaceful revolution impossible will make violent revolution inevitable.” I’m sure he was probably quoting some dead Greek guy, but there is an important truth there nonetheless.

    If there is a defined structure for changing things then it makes it harder for the tyrant to capriciously do so. Here in the USA we hear regular discussions over whether something is constitutional or not. Of course many things that plainly aren’t, are ruled to be constitutional, but the point is that it is a hindrance to tyrants. The point is that the existence of the constitution prompts the discussion in the first place. Were there no written framework for how the government is supposed to operate, then we are left with is unfounded opinion about that matter, which means the guy with the biggest stick wins. A constitution can serve as a rallying cry for the masses, and it has value just for that purpose alone.

    This is further exacerbated in a separated powers system, whether horizontal or vertical, which means that the powerful can fight among themselves.

    For example, over the past one hundred years the federal government has gradually impinged on the right to keep and bear arms, but the constitution was used as a tool in the Heller ruling to really upturn all of that.

    Don’t misinterpret me to believe I think constitutions fix everything, one need only look at the state of the US to know that that isn’t true. But it does provide a brake on tyranny, it provides a context by which people can have a discussion about the growth of tyranny and resist it if they so choose.

    In my opinion, it is in the public schoolroom that tyranny really is born. If the government educates your children why would be be surprised to think that those children are advocates of government? Anybody surprised when Catholic schools turn out Catholics?

    But in another sense Perry is right. We are only free insofar as we demand and fight for our freedom. At least with a constitution we can have some agreement about what “freedom” actually means.

  • Nico

    Constitutions only help when and while they are respected. Every generation has to decide whether it will. But the institutions that protect a free people can be corrupted and made to keep the people from acting to restore freedom. This is roughly what ends up happening as a constitutional society evolves — life for individuals and societies is a fight against the laws of thermodynamics. Protecting the low-entropy enclave that is a body or body politic requires care and low-entropy energy. Parasites, like their victims, have the same self-interest; the victims must resist succumbing completely to the parasite, but can’t avoid active attacks by the parasites.

  • Midwesterner

    The principle benefit of a constitution is that it establishes a fixed frame of reference.

    Changes to a legal system (de facto or de jure) are measured in distance-from-origin in a constitutional system or speed-of-progress in a untethered/’progressive’ system.

    Changes of mood in a constitutional system tend to be toward or away from the starting point. Changes of mood in an untethered system tend to wander ever farther from the starting point. This pattern is visible in institutions as well. For example, book based religions tend to drift and return to fundamentals. Secular foundations without a highly constraining founding document (often even with one) drift in to unrecognizable entities that are often at war with the principles of the founder.

  • Secular foundations without a highly constraining founding document (often even with one) drift in to unrecognizable entities that are often at war with the principles of the founder.

    Examples?…(I do agree with the rest).

  • Sceptical Antagonist

    I’ve only recently read a snippet about Lichtenstein and see that they have a system in place whereby any law can be brought to a referendum and overturned if that’s what the public want.

    I presume that because our Queen has handed her powers over to the Gov. that any chance we had of having such an arrangement has gone out of the window?

  • Nick (Blame FrenchMEN) Gray

    Hey, sometimes words DO change their meanings! It only took a few centuries for ‘aweful’ (awe-ful) to become a derogatory word. At one time, to have your work called ‘aweful’ was a compliment! So we do need someone to interpret words. If not judges, then who?

  • Laird

    The meaning of words does change over time, and the principle of stare decisis (deference to judicial precedent) results in the famous “ratchet effect” (activist judges establish new precedents and conservative judges then nail them into place) as we slide ever faster down that slippery slope. A constitution does help to slow the decline, as Fraser Orr says, especially with an “originalist” judicial orientation. Proponents of a “living constitution”, on the other hand, would give us a rubber ruler as a measuring stick.

    That said, the cumulative effect of centuries of legal precedent encrusting the constitution like barnacles, coupled with generations of ambitious politicians constantly straining against their bonds, must inevitably result in a societal drift far from its moorings. That’s why permitting the federal government to be the sole arbiter of its own power was an absolutely idiotic idea (to say nothing of being completely contrary to elementary principles of agency law); the fox is truly guarding the henhouse. There needs to be a countervailing power to keep the federal government in check. In the US that power was supposed to be the states who, in theory, were expected to be jealous of their own powers and thus mindful of federal usurpations. To the extent it worked at all, that control disappeared in the early 20th century, with the popular election of senators (rather than their appointment by the states) and giving the federal government effectively unlimited taxing power. The states signed their own death warrants (as meaningful political entities, anyway), and that of the entire federalist system, with their ratification of the 16th and 17th amendments. We’re paying for their foolishness today.

    All of which is why I argue that it is time to return to fundamental principles and redraft our Constitution to give new life to its federalist structure and carve the federal government back down to something approaching its proper size. Courts won’t do that (they are willing co-conspirators in the expansion of federal power), and Congress certainly won’t do anything to limit its own power (it won’t even produce a constitutional amendment for term limits, even though a large majority of the people want one). Only a state-called constitutional convention will suffice.

    Our constitution as originally written did a pretty good job of keeping the federal government in check for the first 150 years or so (yes, it wasn’t perfect, but nothing human is). It’s time to learn from the mistakes of the last century and fix the constitutional flaws which are now so glaringly apparent, and give the country a chance at another 150 years of freedom. Without the “help” of Congress.

  • Midwesterner


    From page 17 of this:

    When the founder passes from the scene, the board takes over. Decision-making becomes more collegial, and possibly more cautious. The board may seek to broaden or alter the foundation’s mandate to adjust to changing circumstances or dispense with the “hobby-horses” of the founder. In doing so, they make invoke the legal principle of “cy-pres” – “close to it” – to modify impracticable or undesirable elements in their charter, as long as the broad initial idea is still recognisable.13

    In the long run, boards become more heterogeneous. Criticism makes them sensitive to public opinion, or at least to the opinions of the intellectuals who criticise them. The tax benefits they receive (which did not exist in Carnegie’s day, since there then was no income tax in the United States) encourage the critics to demand that they be “accountable” as public institutions. Foundations risk becoming bureaucratised, timid, publicity-conscious, or politically correct.

    13. The standard literature on foundations is largely written by present or former foundation staff or board members, or by critics who feel they could have done a better job. Both groups find they can agree on the need for the broadest possible interpretation of “cy-pres”. Recently, however, there has been something of a backlash against this liberal interpretation of foundations’ mandates. Right-wing critics in particular have charged that foundations have often betrayed the freedom-loving individualism of their founders by engaging in social engineering projects, or promoting regulatory schemes. The Pew Charitable Trusts, set up by deeply religious arch-conservatives, are often cited as an example, and MacDonald (op. cit., Box 1) discusses other instances, including the famous 1977 resignation of Henry Ford II from the board of the Ford Foundation. Ford claimed that the board’s “support for leftist causes” had taken the Foundation far from the intentions of his grandfather.

    and from this:

    This isn’t just a story of numbers. Mr. Horowitz and Mr. Laksin point out that much of this money is the diverted product of the free-market system progressives are trying to undermine. The left has employed a corps of philanthropic professionals to change the orientation of foundations established by capitalists. Oil tycoon J. Howard Pew, for instance, left a fortune to teach Americans the “values of the free market” and the “paralyzing effects of government controls.” Pew Charitable Trusts is now the largest funder of the Tides Center, a middleman funder of far-left-wing activists.

    John D. MacArthur was a conservative who put other conservative Midwestern bankers in charge of his foundation. Now that those conservatives are gone, the foundation’s leadership and grants have become dominated by progressives. The same fate befell the Ford and Rockefeller fortunes and those of many other capitalists, who would be spinning in their graves if they knew what causes their money was now underwriting.

    That was just a quick search. I imagine Paul has a few to add.

  • I see, Mid. But in your original comment you seem to have posited this against a religious doctrine, with the latter being more ‘tethered’? I’m not sure that is true – meaning that a secular foundation or ideology or constitution can be as tethered or loose as a religious one. Adherents of religions do tend to go back to fundamentals of their religions, but often they don’t. Then you have secular ideologies, with their adherents doing – or not doing – the same, see Marxism, for example? And I’m not sure how is all of this in any way exemplary of states’ constitutions…But maybe I’m just nitpicking, because I think I do get your overall point…

  • Fraser Orr

    @Laird, you assessment is correct, your solution is not.

    Were today’s America to redraft the constitution, can you imagine what they would come up with? Exactly what sort of preamble do you think Obama or CNN would write for us? How many new “rights” would be added to the bill of rights? It is utterly terrifying.

    Back to Perry’s original point — the solution is to change hearts and minds not documents. You need a people who love liberty to draft a liberty loving constitution.

    And, as I have said a few times, the first step along that road is a revision of the public school system which really is the matrix of the prevailing and growing preference for statism.

    That is a tough target, but, to me, it is the place to start.

  • Laird

    My only disagreement with that, Fraser, is I don’t fear a constitutional convention. Yes, of course Obama and his ilk (in both parties) would try to subvert it. But if an Article V convention were to be called it would be by 34 states who are so fed up with the status quo that they are willing to resort to such a last, desperate act to preserve the nation. Do you really think they would send delegates who felt differently? Do you really think the few “holdout” states could possibly derail that effort? And if they did, and managed somehow to report out something truly awful, do you really think that 38 states would ratify the result? A constitutional convention is far less to be feared than the current piecemeal dismantling of our present one. (I’m not going to take up space here with all the arguments; they’re addressed in my book.)

  • The Sanity Inspector

    “We rest our hopes too much upon constitutions, upon laws, and
    upon courts. These are false hope; believe me, these are false hopes.
    Liberty lives in the hearts of men and women; when it dies there, no
    constitution, no law, no court can ever do much to help it. And what
    is this liberty which must lie in the hearts of men and women? It is
    not the ruthless, the unbridled, will; it is not the freedom to to do
    as one likes. That is a denial of liberty, and leads straight to its
    overthrow. A society in which men recognize no check upon their
    freedom soon becomes a society where freedom is the possession of only
    a savage few…The spirit of liberty is the spirit of him who, near
    two thousand years ago, taught mankind that lesson it has never
    learned, but has never quite forgotten–that there may be a kingdom
    where the least shall be heard and considered side by side with the
    –Justice Learned Hand