What I think about the Constitution

The other day a friend of mine asked me what issues I disagree with Ron Paul on (since I love him so much), and I decided that if I wanted to give an answer that my friend deserves I'd better write a blog entry for it. There's a good number of issues where I disagree with the Good Doctor. For one thing, he's no anarchist, and he's explicitly spoken against anarchism. I don't blame him for that one, though. After all, I still voted for him in the primaries. And I shouldn't judge people for engaging in Statist activities like seeking public office when I'm engaging in the Statist activity of voting for them.

One thing where I disagree with Ron Paul has more to do with strategy than with policy. Ron Paul obviously would oppose federal subsidies for agriculture. Every animal rights activist agrees that subsidies for the animal industry are to blame for the existence of factory farms and the abuse that occurs there. Ron Paul could have exploited that by calling for an end to agricultural subsidies. He could have advocated other green libertarian policies like the privatization of water and energy, and used those as examples for why the free market is the only sustainable option. I don't know, maybe it wouldn't have worked to attract more leftists to free market ideas. But at any rate, it would have shown some people that free marketeers have an idea of how a free market can address issues that environmentalists and animal rights activists care about.

There's another issue - gold. Ron Paul keeps saying that our Constitution only allows gold and silver to be legal tender. But the problem isn't that we don't have a gold standard; the problem is that we have legal tender. If we want anything vaguely resembling a free market, we have to have a free market in currency - and that means no one should be forced to accept any particular currency as repayment. By forcing people to accept repayment in a particular currency, you lay out the banana peel for inflation. I've heard Ron Paul, Tom Woods, and Peter Schiff say something like that maybe one or two times and no more, and it's a real tragedy, because now people who regard these guys as authorities on free market economics and who don't have the free time to read Austrian banking theory think that to have a free market we need legal tender with a gold standard.

There are several other issues, but I'll concentrate on this one - the Constitution. Ron Paul seems to think that we can keep a free and prosperous country ruled by a strictly-limited government if we read the U.S. Constitution the same way Hasidic Jews read the Tanakh, Mishnah, and Talmud. There are a few problems with Constitutionalism.

As with any text-based religion, you get the problem of interpretation. Just look at Christian fundamentalists. You get people who think you can loose your salvation, people who think once you're saved you're saved even if you go on a rape and murder spree, people who think God decides who gets saved and who doesn't and your prayers have absolutely nothing to do with it, people who think you're not saved unless you start splashing around speaking a language so foreign not even you can understand, people who think we should enforce Mosaic law in the U.S., Westboro Baptist Church, etc. Sure, you can settle a few things by picking a particular text as your ultimate authority. But the Devil's in the details, and how you interpret that text is going to make a whole world of difference. In the past 200 years our nation's legal theorists developed something called "Constitutional Law", which basically is the practice of ambitiously inferring things from the Constitution that aren't mentioned anywhere in the Constitution. The practice would most suredly have developed even if our forefathers stuck to the Articles. Needless to say, the bounds laid out in the Constitution didn't restrain government. This isn't just because there are power-hungry judges and lawyers and bureaucrats out there. It's because the Constitution is incomplete. Frankly, no piece of paper expresses every implication of the principle of liberty. The U.S. Constitution is a good example of this fact. Try this thought experiment: Do you have a Constitutional right to live?

"Well obviously we must," you might think, "because the Constitution is framed according to principles of individual liberty, and individual liberty would be meaningless without the individual's right to live." But if you do that, wouldn't you be introducing as "Constitutional" something that isn't mentioned anywhere in the Constitution? And wouldn't you be as guilty of misconstruing the Constitution and increasing government's role as the black-robed unelected magistrates who write up pages upon pages of opinions that cite pages upon pages of other opinions, and memos, and briefs?

This brings us to another problem with text-based religions like Constitutionalism - from where does the piece of paper get its authority? "From its adherence to principles of individual liberty," you might insist. Well then, fine and good. I believe in individual liberty. But then, the Constitution would have authority only so far as it falls in line with principles of freedom. Parts that don't adhere to these principles, like Article I Section 8 clauses 1, 2, 3, and 5, and the second half of Article I Section 9 clause 2, have no authority, since they contradict individual liberty.

And another thing about authority. If what we're concerned about is the principle of individual liberty, then why even look at the Constitution? Why not just govern ourselves according to principle?

The UK has no written Constitution, and they're doing just as "fine" as we are. Sure, they have all sorts of intrusions like the NHS and gun control, but our individual states have the same thing, and the Constitution says nothing against them doing that. And our federal government has all sorts of intrusive and money-draining things that aren't provided for in the Constitution, which the Court justifies under the "Necessary and Proper" clause.

So no, the Constitution doesn't work and we don't need it. But let's go further: if what we're concerned about is individual liberty, then the Constitution is - how shall I put this - unconsitutional? The form of government that the Constitution provides for is supposedly "self government", a type of government that, to quote Jefferson, derives "its just powers by consent of the governed". How many of the governed? A majority? And does that mean that government should be free to do whatever the majority wants? Well no, we're drawn to an indirect, limited form of government with checks and balances and a Bill of Rights because we know that whatever the majority wants isn't necessarily right. We have to respect the rights of individuals, not the whims of kings and crowds.

Since we want to protect individual rights, we have to regard "the people" and "the governed" not as a faceless unit (which would be collectivism), but as a sea of individuals. If governments derive their just powers by consent of the governed, then no government has authority over a person who doesn't freely give that authority. It doesn't matter that most everybody else wants the form of government laid out in the Constitution. If they want that government, let them have it. But don't force it onto the minority who don't want it. Just because the Constitution was ratified through democratic means doesn't give its government the right to force everyone in this country to submit to it. Democracy is irrelevant. It's two wolves and a sheep deciding what's for dinner.

(And besides, the Constitution was not ratified democratically. Only men were allowed to vote, and land-owning men at that.)

The basic premise of individual liberty is this: that every one is fully sovereign over him or herself, and should be free from invasion of person and property. Since each of us is fully sovereign, none of us should be forced to do things that we don't want to do, or forced to abstain from things that we don't want to abstain from (so long as we're not violating other peoples' rights). That is the rule that governments should follow. If we want to bicker, let's bicker about how to interpret this principle - not how to interpret some piece of paper.

If we want our governments to respect this principle, then we can't have government as we know it. Governments are coercive monopolies - they don't ask the individual for consent. And since they're monopolies, they're bound to grow no matter how limited they are. When there's no competition, there's no incentive to keep costs down, and so the size, inefficiency, and price of government (that is, taxes) increase indefinitely.

Either the form of government laid out in the Constitution can respect individual liberty, or it can't. If it can't, then the U.S. government has no authority and its Constitution is irrelevant. If it can, then we wouldn't recognize it as a government, since it wouldn't assume power over any of us. In other words, if Constitutional government respected our rights, we would all have been able to secede by now, and whether the U.S. Constitution permits a central bank or a public health option would be no concern of ours. This is what I mean when I say "I don't give a shit about the Constitution."

Don't worry about some slippery slope to "progressivism". I'm not loosely interpretting the Constitution to expand government's power. The Constitution already gives government power that it shouldn't have, and if you want to stick to the Constitution, then you want government to keep that unjust power. I'm quite the opposite of a "progressive". I don't want to increase the power of the State. I want to abolish it completely. So please, don't confuse me with Lincoln, T.R., Wilson, F.D.R., L.B.J., Nixon, or any other tyrant that used the founding documents as toilet paper.

As I mentioned at the beginning of this post, none of these differences kept me from voting for Ron Paul in the Republican primary. If he were to run again in 2012, he'd still have my vote. I might even write him in if he doesn't run. Given the typical choices, every vote for a candidate is thrown away no matter what, so I may as well throw my vote away spectacularly.