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.
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Samizdata quote of the dayJuly 7th, 2014 |
 15 comments to Samizdata quote of the day |
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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.
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
Link works
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.
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.
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.
Examples?…(I do agree with the rest).
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?
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?
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.
Alisa,
From page 17 of this:
and from this:
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…
@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.
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.)
“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
greatest.”
–Justice Learned Hand