Following on from my last post, what would be a better attitude towards Constitutionalism than the Originalism so influential in libertarian and small government circles in the United States? That influence will not diminish in any foreseeable future, it is deeply embedded as a means of political mobilisation and as a framing narrative for those political families. It is difficult to make comparisons with other countries, because no other country has had such a little changing constitution over such a long time. The United States would be better off holding a new constitutional convention and incorporating either easier amendment procedures, or arrangements fore regular conventions. A new Constitution could at least remove language which belongs to another age. For examples section 9 of article 1 forbids bills of attainder, which I believe originally refers to seizure of the property of baronial families by the British Crown. It’s inclusion in the US Constitution is aimed at preventing similarly arbitrary acts against US citizens. It is this aspect of the Constitution which has been invoked with regard to the drone assassination of US citizen turned jihadist in Yemen. What a very unclear basis for dealing with the issue of executive authority to assassinate US citizens, particularly when the Constitution refers to bills passed by Congress, not Presidential authority. Again, Originalism is stuck with odd looking readings of the Constitution, because that’s what whatever political current it is want to see in the Constitution. The US political system would benefit greatly if, a revised Constitution introduced proportional representation for the House of Representatives, which sometimes gives the majority to the party with less votes, the President was directly elected instead of by an Electoral College, and if a new clear list of powers of the federal government and the states was introduced, reflecting political balances now, not those of 200 plus years ago. Very remote speculative stuff, but I believe the time will come.
On constitutional and legal theory, in general, anywhere in the world, I favour defining the legal system as something resulting from political struggle and temporary truces, not as the complete explanation of all laws, and not so that legality is reduced to a mask for power, but in order to replace idealising legal fictions with something socially real. This is a bit difficult since naturally the representatives drawing up a constitution want to make it look very ideal in foundation. At least I hope for some recognition that politics is about non-ideal power, and so is the legal system.
Discussion of original meaning şs perfectly legitimate, but then so is discussion of conflicting original meanings, and the various meanings people prefer now. Constitutions should be seen from the point of view of the present, not the dead weight of the opinion of the ancestors. The ancestors left us a legacy of laws, meanings, institutions and cultural transmission, that is enough without adding something sacral to the opinions imputed to them. Judges should only change understandings of laws and constitutional items, step by step, case by case, not through abrupt and dramatic shifts except where the understanding of basic human rights has changed to a very considerable degree. Radical changes in interpretation are justified where consensus about values has changed very strongly. This is less of an issue where it is easier to amend the Constitution than it has ever been in America. Even with the high thresh hold for change, stupid amendments have been introduced like the prohibition of alcohol, which have come and gone, so that thresh hold is not a good guarantee. The United States has not done referenda on a federal level in the past,it should do so now. This is still compatible with a strong return of powers to the states. A referendum to amend the Constitution could require a thresh hold percentage of the federal vote and a majority in a minimum number of states, for example.
Let us turn to Britain, my own country, though I am not a resident there. That is a country that could really benefit from a properly entrenched constitution (there is no such thing in the UK). The country is in a mess about reform of the unelected House of Lords, and reviews of constituency boundaries. Clearer constitutional conventions and procedures would not solve all such problems, but would be a step in the right direction.
My last suggestion is one in the spirit of classical liberalism and libertarianism, but would I hope be acceptable to many other people. This is for any country. That would be a test for any law, or any constitutional amendment, for genuine public benefit, genuine universality, and genuine equality in its effect on citizens. There is no one way of deciding these things, no procedure which would satisfy everyone all the time, but agreement on some procedure to protect the political and legal system from too many laws, and too many laws which do not satisfy what most understand to be the point of law, that a law should apply equally, be universal in application, and serve the public good.