A Dead Letter: Thoughts on the Constitution of the United States of America

My political views are difficult for me to classify if only because I disagree with certain definitions used by people with views like mine, but for the sake of simplicity, I'll call myself an "anarcho-capitalists", which is a branch of libertarianism. I'm an "anarchist", because I don't think anyone should be exempt from civilizing moral standards, and a state necessarily exempts itself from civilizing moral standards. A state necessarily violates private property rights, free enterprise, and regular human decency as a consequence of its day-to-day existence.

Many libertarians disagree, in fact there are many different factions among libertarians; most of them favor a minimal state of some kind or another, for pragmatic reasons. Most American libertarians would probably consider themselves strict constructionists of the constitution. There are some self-styled conservatives whose views honestly and truly fall within the boundaries of that definition as well—they're far less common than the conservatives who say that and don't know what it means, but they do, nonetheless, exist.

My purpose here is to challenge the practical value and overall usefulness of the constitution towards the goal of liberty. Luckily, RCS is a strict constructionist whose works I have reviewed here on FictionPress before, and who has sometimes responded to my statements—I've not read his fiction, but as I said I have read and reviewed many of his essays and found him to be not only a clear, intelligent writer but also uncommonly principled. I recently requested, and received, RCS' permission to use him as a punching bag, for which I offer my deep and sincere gratitude—some of the views contained in his essay on the constitution provided me with a valuable stepping stone that made my work here a bit easier.

First I'll say that I don't see any flaws in RCS' interpretations of the constitution; he reads it as its authors meant it to be read. I myself am ambivalent to the American revolutionaries; the US founders were a mixed bunch, but I think on net they were well-intentioned. But in the real world, the consequences of actions are not changed one whit for better or worse by the intentions that drive them. My problem is not the way that constructionists like RCS, and his "living-document" opponents, interpret the constitution; it is with the notion that it matters.

In a reply to one of my reviews, RCS writes:

"I can't find the executive order powers anywhere in the Constitution, and I find a President who legislates via executive order as much an affront to the Constitution as a judge who legislates from the bench. Somewhere along the line, a President decided that he has legislative power through the executive order even though the authors of the Constitution clearly intended Congress to have the legislative power. This is a clear example of the danger of the "living document." If the people in power can interpret the Constitution's wording any way they damn well please, they'll use that misinterpretation to garner more power for themselves, and to hell with the rest of us." (from chapter 5 of RCS' The United States Constitution)[1].

Against the strict constructionist position, I have three primary objections.

Parchment Worship

Firstly, RCS finds a president that can legislate through the use of executive order to be an affront to the constitution. That may well be.

But, why should the constitution have any value, in and of itself? One can give any number of ends that could be theoretically served by adhering to the constitution—restraining the power of government, for example, to prevent it from usurping liberty; or, as RCS states several times, preventing the government from wasting money on things other than national defense—but to make the constitution an end unto itself seems utterly silly. What if the particular end one desires can be better served by circumventing the constitution? For example, posit that congress is passing disgustingly tyrannical laws which nevertheless adhere to a constitution that they've legally amended to be more tolerant of their aims; also posit that hell has frozen over, and a principled man is elected president. It's true that he can simply veto everything that the congresscritters throw at him after he takes office, but with a supermajority they can override that. Would it not be perfectly moral to use the power of executive order, assuming it will be effective, to protect citizens from these laws? The same argument can be made against complaints about judges "legislating from the bench": If it protects liberty—or any other desirable end—from malicious congresscritters, is it not perfectly moral?

Now, one might make the argument that this scenario is unlikely, that judges and executives are far more likely to abuse such powers than to use them for good. That's fine, and anyone making that argument would be entirely correct. But I don't think that's the position strict constructionists hold, because the same argument can be made against the legislators themselves.

Public Choice and Rational Ignorance

Which brings me to my second and probably most powerful contention: namely, that because the constitution is a mere document, it can only be interpreted as one "damn well please[s]". The constitution, as plainly as it may be written, is still open to interpretation by virtue of it being an inanimate object whose creators are long dead. Those unfortunately entrusted with power, presumably under its authority, have no real check against their actions. They could conform to the constitution, but why should they? Who's going to make them? That the strict interpretation of the constitution, were it to be followed, would result in a far less intrusive, and far less harmful government is not in question. However that is, simply, never going to happen.

People interested in abiding by the constitution are never going to get elected to public jobs that actually matter. Public Choice Theory goes part way towards explaining why:

"Although legislators are expected to pursue the "public interest," they make decisions on how to use other people's money, not their own. Furthermore, these resources must be provided by taxpayers and by those hurt by regulations whether they want to provide them or not. Politicians may intend to spend taxpayer money wisely. Efficient decisions, however, will neither save their own money nor give them any proportion of the wealth they save for citizens. There is no direct reward for fighting powerful interest groups in order to confer benefits on a public that is not even aware of the benefits or of who conferred them. Thus, the incentives for good management in the public interest are weak. In contrast, interest groups are organized by people with very strong gains to be made from governmental action. They provide politicians with campaign funds and campaign workers. In return they receive at least the "ear" of the politician and often gain support for their goals.

In other words, because legislators have the power to tax and to extract resources in other coercive ways, and because voters monitor their behavior poorly, legislators behave in ways that are costly to citizens." (Jane S. Shaw in The Concise Encyclopedia of Economics)[2]

Rational Ignorance[3] goes the rest of the way by explaining why voters monitor legislators poorly. Rational ignorance is the concept that if the costs to an individual of acquiring knowledge of something outweigh the benefits of having that knowledge, that it is rational for the individual to choose to remain ignorant on the matter.

A person shopping for a car has a large incentive to invest time in learning which car would be the most economically beneficial to him, which car would best suit his needs and wants while still falling within his optimal price range. When he makes his decision he'll have benefited greatly for doing his homework; the car he buys with his money becomes his and the benefits of his decision affect him directly.

Compare buying a car to voting on a politician:

The assorted costs, in time and subsequently money, to keeping up with politics, monitoring voting records, etc. obviously are not covered by the potential benefits of the results of one's vote. Even if the results of an election are important, the chances of an individual voter affecting the outcome of the election are, for all intents and purposes, zero. If an election is close enough for an individual vote to matter, it will be decided by the courts.

This is why so many people simply vote along party lines, and many more do not vote at all. Even if one invests one's time in learning all the matters that will be affected by an election, and even if one indeed votes wisely, one's vote doesn't have enough of an effect on the outcome to make the time investment worthwhile. So, even if we assumed that politicians were beholden to voters, which I do not think is a reasonable assumption, it still would not change the fact that they cannot be held accountable, and thus, regardless of their intentions, they have an incentive to be, at the very least, wasteful.

The False Dichotomy: Liberty versus Security

The final issue, the liberty versus security dichotomy, is not directly related to the matter of the constitution. It only comes up in the most abstract of arguments; or in arguments that segue from arguments about other things. Nevertheless it suits my purpose to address it.

First I want to make a distinction between 'freedom' and 'liberty'. To a great extent, and justifiably, they are used interchangeably. But liberty is also often used in a more political (classically defined, as in, dealing with the proper activity of civilized individuals toward one another) sense. To a great degree whether one believes in 'freedom' depends on whether one believes in 'free-will', an issue for another time and another, preferably far, far away place; after all, the limitations that the laws of physics place on your actions are just as much restrictions as those placed by other individuals. If freedom is defined by choice, then you either have it, in any and every situation, including where you're threatened with violence (you can always choose to suffer the violence) by another human; or, if there is no such thing as free choice, you don't..

But liberty retains a meaning unobfuscated by the fruitless and entirely irrelevant conflict between hard determinists and (philosophical/theological) libertarians. Because liberty describes a political ideal; that each man should be able to act towards realizing his ends as long as he does not aggress against the person, and by extension, property, of others.

When liberty is described in this manner, the false dichotomy I speak of becomes clearer. If we see the state, not as a magical extension of "the will of the people", which is a vacuous concept in any case, but as simply an actor equivalent to any organization, then clearly what the word liberty means is 'security against the particular actor called the state'. If a criminal is violating your security, he is violating your liberty; if a state is violating your liberty, as all states by definition do, it is violating your security: The state and the criminal are the same. Every criminal is a miniature state, and every state a gang of criminals.

When one says we ought to find an optimal balance between liberty and security, by instituting or adhering to a constitutional government or whatever, what one is in reality arguing is that we ought to find an optimal balance of security in which we, non-criminals, play the reigning gang and its freelance opponents against each other to maximize the safety of our own persons and property.

I only wish to clarify that that's what this particular argument amounts to. To expound on why this 'balance' is unnecessary for the maximization of liberty, and morally undesirable, is a task beyond my purposes here, though I intend to deal with them at a later time.

In Conclusion

I find the entire social contract theory wanting. Lysander Spooner's point in No Treason, that most of the supposed parties to these contracts, "the people", were never approached as to their consent or not, holds fast. Even if one dismisses that argument as too moralistic, there is still a gaping pragmatic hole inherent in most social contract theories: If most humans are basically nasty and brutish, then the best at being nasty and brutish are inevitably going to find their way to the top in any institution of power. The Sovereign is not some supernatural, abstract thing; it is a human, with all the same inclinations and drives as any other human. Power, in the political sense, is shorthand for the ability to conduct violent acts without suffering reciprocation; laws and dictates and taxes are enforced ultimately by a gun to the head, one that can be reinforced by many, many more guns if its target offers effective resistance. The most criminally-minded, or perhaps more accurately, the more intelligent among the criminally-minded, are going to go where they are least likely to suffer undesirable consequences for harming others. They're going to go for political office. No constitution is going to restrain abuses for very long, because documents don't enforce themselves. The people in a position to uphold the constitution, as it was intended to be upheld, aren't going to do it.

Not voluntarily.

The incentives just aren't there.

"[T]he writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain-that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."—Lysander Spooner, from the Appendix to No Treason, No. VI, The Constitution of No Authority[4]

[4] No Treason can be found online: .

Appendix: .ch/etexts/www/NoTreason/NoTreason_

A/N .

* Another chapter not guaranteed, but likely.

*Unfortunately, FP won't let me post the URLs for three out of four of the resources that I cite. So google 'em if it matters to you.

*Please do not swear while reviewing this essay. Any reviews containing words unsuitable for a 'G' rating will be removed.