Constitutionalism without Originalism

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.  

The Peculiarities of Constitutional Originalism in America

This is something I said I would address in at least one previous post, so now I am writing on it.  Constitutional Originalism in the United States is the doctrine that the Constitution should be interpreted according to the intentions of its authors.  The proviso is generally added that the intentions are judged according to the public meanings of the language used at the time.  This way of thinking has a good deal of support for libertarians and small government conservatives in the US.  I would say close to unanimous support amongst small government conservatives, and there is a reason for that: the Constitution is something from the past to be conserved.  The support from libertarians is less unanimous, but it is a distinctly popular view amongst the larger libertarian organisations across a broad spectrum of libertarians: Cato Institute, Reason, Mises Institute, and the major group for libertarian legal discussions, The Volokh Conspiracy.  You can sometime come across the view that the Constitutions was designed to further the interests of the powerful of that time, and should not therefore be regarded as something to protected almost at all costs.  I take the latter view, as a libertarian of very moderate kind (smaller state but still with income transfers to the poorest, and other forms of public expenditure).  I don’t think that moderation is necessarily the mark of a constitutional sceptic, it might be more to do with intersecting issues of attitudes towards tradition and continuity, and theories of power.  

A standard jibe against Originalists is that they treat the Constitution with religious reverence, as though it were a sacred text. It can be said that is just a cheap jibe, but even it sometimes is, even the jibe has a lot of possibly unintended content.  To get to where ı thin religion does come come in, I need to say abit more about how Originalism and why I am sceptical.

The Originalist position is that a long history of court judgements, can and should be overturned even if they come from the Supreme Court, if they contradict the original meaning of the Constitution.  Originalists may take examples of the Supreme Court judgements which entrenched slavery or racial discrimination after the abolition of slavery, and say that it was right they should be overturned with regard to the original meaning of the Constitution.  However, the Constitution was not intended to abolish slavery or establish racial equality.  There are good reasons for saying the general regard of the Constitution for the equality of citizens and the basic rights of Americans is best fulfilled through abolition of slavery and eliminating state discrimination, but that is not something that can be found in the Constitution according to Originalist criteria.  What the Originalists often seem to mean here is that the Declaration of Independence famously uses the phrase: ‘We hold these truths to be self-evident, that all men are created equal…’.  However, the main author of that text, Thomas Jefferson, owned slaves, even though with some regret, and never really adapted to the idea that people of different races could live together as equals.  The fact is the original meaning of the Constitution, or of documents that are in practice used just as much by Originalists as the Constitution, like the Declaration of Independence or the Federalist Papers (papers published in the Federalist to explain and defend the newly drafted Constitution), the latter of which has precisely zero legal standing, have nothing to say about abolition  of equality regardless of racial distinctions.  

Let’s get back to the religious issue.  The Originalists urge the overthrow of legal tradition in order to return to the text of the Constitution.  This is the early Protestant attitude to the Bible, and is still held to by those who remain true to the founders of Protestantism, such as Martin Luther and John Calvin.  Later trends in Protestantism are certainly not rejecting the study of the Bible, but introduce new issues, and here’s a few. The continuity of the Christian community with the very earliest Christian groups for whom the Bible was written, that is Christian or Jesus following groups, existed for some decades before the Gospels, which were themselves preceded by the Epistles of St Paul.  Emotional communication with God.  As historical and linguistic research undermined the unity and factual plausibility of the Bible, including the Gospels, a growing tendency to emphasise metaphorical or situational readings of the Bible, or to emphasise its power of spiritual transformation on the reader, rather than the literal truth of its text.  Of course literalist readers of the Bible are still widespread in America, and I believe that has something to do with the cultural power of Originalism.  Originalism in legal studies believes in a return to the supposedly clear and unified meaning of the Constitution, which dissolves all the misinterpretations of tradition.  

As already noted, Originalism does rely on approved texts other than the Constitution, including texts with legal force like the Declaration of Independence, and texts with none, like the Federalist Papers, though in practice the Federalist Papers are so often treated as a supplementary part of the Constitution that the difference is hardly meaningful.  Similar remarks apply to the reading of the Bible in Protestant tradition.  Of course in practice the texts of the great Reformers are brought in, as are the early Church Fathers.  

However, Protestant Biblical literalism is not the only cultural context of religious origin for Originalism.  Catholic Natural Law tradition also has a strong presence in those circles.  In this way of thinking, ancient pagan philosophy (particularly Aristotle), the text of the Bible and great Medieval Catholic thinkers, (particularly Aquinas) are unified by adherence to laws which apply to all humans, regardless of religious inclination, and which are known through the natural reason which God installs within us.  There is a strong stream of Catholic small government conservatism and conservative libertarianism, in America which sees the Constitution (and associated texts) as part of Natural Law and therefore sharing the various levels of esteem and sacred awe which are extended to other manifestations of Natural Law.

The Protestant Bible reading element in Originalism is very literalistic and conservative compared with what is to be found in post-Enlightenment Protestantism, or indeed any school of thought on interpretation of texts in literature, philosophy and so on.  The Catholic Natural Law element (the Protestant and Catholic elements can overlap) also seems to belong to the Catholicism of a past age.  If we look at philosophical work on tradition, meaning and interpretation in texts, we can consider Hans-Georg Gadamer’s book of 1960, Truth and Method.  Gadamer was a political conservative who drew on traditions of Biblical interpretation in his philosophy, and on old notions of law.  He is, however, very critical of the view that texts have a single unchanging literal meaning, and takes law for a model of method, rather than a source of unchanging meaning.

Another peculiarity of American Originalism is that some of its strongest adherents are anarchists, who must prefer an order of orders, a spontaneous order of different but co-operating legal codes, between which inhabitants of a territory can choose.  Anarchist inclined originalists include its leading academic legal representative, Randy Barnett and the Republican enthusiast for ‘constitutional government’ Ron Paul.  Paul has picture of the anarcho-capitalist writer and activist Murray Rothbard, in his office.  The oddity of anarchists who are passionate defenders of the ‘original’ constitution, seems to be in part explained by the belief that that Original Constitution is the best possible compromise given that there is a state.  It is the most perfect document that humanity can produce after it has fallen by accepting government.  So we are back to a rather sacral attitude.  People like Barnett and Paul may believe that the Constitution is the closest thing to anarchy available, but it is still very far from anarchy, it’s not even close.  It is the product of a belief in republican government as what can elevate humans, to a large degree by setting them free of the state, but never in an absolute way, never in a way which really makes the state absent.  

Following on from the paradox of the anarchist Originalists, there is the general tendency of libertarian (but not so much conservative) originalists to find rights in the Constitution, particularly in the Bill of Rights which contains the fist 10 amendments to the Constitution, which would have seemed strange to the Founders, or Framers.  Freedom to circulate extreme pornography and for children to have free speech at public high schools under the 1st Amendment (which guarantees free speech) as part of the intentions of the Framers?  I don’t think so.  I support those interpretations of free speech, but not for Originalist reasons.  The more libertarian Originalists support abortion rights on the basis of a right to privacy which appears no where in the Constitution, or any amendments, and is the outcome of legal tradition, as the most convenient way of unifying some aspects of Constitutional law.

Getting back to Natural Law, I don’t think it is irrelevant to good legal theory, but it is the source of a lot of bad legal theory.  The ‘liberal’ or  ‘living constitution’ tradition appeals just as much to Natural Law, to a belief that law rests on morality in its foundations, not the decisions of a majority at any one time, or the decisions of any political sovereign.  In practice, of course, both traditions end up putting enormous  weight on the decisions of sovereign power made in the light of the wish to maintain that power, where it appears to be adopting the ‘right’ principles.  The liberal version of Natural Law theory is a good deal more intellectually plausible though, resting as it does on some sense of historical evolution in basic moral standards.  The very conservative forms of Natural Law require us to accept that even in slave holding antiquity, natural law was the same, and in the Feudal Middle Ages. Not of course in order to defend slavery, or serfdom, but in order to try to place them outside of the essentials of Natural Law at that time.   We can of course find continuity, but continuity with transformation, and as was recognised in the Enlightenment, with the hope of moral progress.  

Less deep but interesting oddities of Originalism include the extreme defence of the view that the Welfare Clause (section 8 of article 2), giving power to the federal government,  only applies to the 13 enumerated powers.  That may have been the intention of the Framers, I think it probably was, but they neglected to make that completely explicit. They only mentioned 6 powers reserved to the states. Given that failure of explicitness, a few years later the Bill of Rights made it explicit through the 9th and 10th Amendments, which does reserve powers other than the 13 to the states and ‘the people’.  So if the Framers thought the 9th and 10th amendments were necessary, why should we thin the General Welfare clause is so clear?  Anyway, the 9th and 10th amendments, have not prevented a very extreme shift towards greater federal power.  As political momentum has moved towards greater federal powers, the courts have found ways to stretch the 13 enumerated powers.  Again I think there are good reasons for reducing federal power, but they are not Originalist ones.  The fact is Supreme Court judgments are conditioned by politics, though Originalists tend to faint at the horror of the evil politics intruding on the Supreme Court.  The power that Originalists favour for the Supreme Court makes its politicisation inevitable, and there is a manifestly political process in which the President nominates members of the Court, who are the confirmed (or not) by Congress.  No doubt judges sincerely believe they are adhering to law not politics, anyone who believes on this basis that politics does not enter the Court, as Originalists often claim to believe, is being absurd.  No cşear, constant and absolute distinction can be drawn between legal and political philosophy, though of course it useful to try to make some distinction, w,thin the realms of plausibility.  

Next post, my thoughts on a preferable position on law and constitutionality.

Nietzsche in the Context of the Liberalism of Late 18th and Early 19th Centuries

This a reflection work I am doing at a present for a workshop, the workshop will become a book, all going well.  What I write here is distinct from what I am writing for the workshop, and proposed book, as blogging is different kind of writing.

The liberalism of the late eighteenth and early 19th centuries is coming to terms with the transition from the models of antiquity, known from antique historians and philosophers, to the commercial societies, the civil society and the legal innovations of the period in which they were living.  Commerce was an important part of ancient republics, and we cannot understand the ancient republics without understanding the role of commerce.  However, the ancient writers themselves were not entirely happy with commercial society as they understood it.  Commerce was inferior to aristocratic disposal of property that had existed over time.  This attitude even permeates the thought of someone like Cicero, though he was the provincial aristocracy in in Arpium, a city which had been only recently Romanised.  A bit later, Seneca, who was extremely rich in part through money lending, never gives much of  a place to commercial life in his writing.

Plato thought rulers should be propertyless and that the money making classes, however rich, should be considered below soldiers in status.  Aristotle was less extreme, but still favoured the limitation of inequality to a ration of 5 to 1 in the best political community, and thought of property as something better used than traded.  In the 18th and 19th centuries writers like Hume, Smith, Humboldt and Constant thought of strong transferrable property rights and the pursuit of commercial wealth as essential to liberty, and to the growth of moral community.  For the antique authors, money is part of desire, and that is inferior to reason, so that liberty means indifference to money, liberty from its influence on reason.  Given the commercial realities of the ancient Greek states, and of Rome, we should bring some scepticism to the writing of the ancients on this matter, but we should also see that liberty can never just be a matter of pursuing subjective preferences, for money or anything else.  That is liberalism can only be complete if it recognises that human flourishing has a communal and political aspect.  In practice, no one, or hardly anyone, has denied that we should care about things other than more money, or more of any source of pleasure.  Some forms of writing about liberty my have some difficulty in dealing with that though, because they start with the subjective pleasure satisfying preferences of isolated individuals.

Nietzsche stands for a kind of individualism which is stronger than that of antiquity, in its concentration on the life of an isolated self.  The exemplary individual in Nietzsche experiences isolation of a kind that is strange from the antique point of view, but does have some roots in ascetic philosophers like Socrates and Diogenes of Sinope.  That kind of asceticism was taken further in Christianity, and there is a bit of the Christian ascetic in Nietzsche.  However, the experience and positive evaluation of isolation and self exploration, with no God given purpose is something than can only arise after the social evolution.  There could be no Nietzscheanism without Rousseau’s isolated savage or Defoe’s Robinson Crusoe.  That is there could be no Nietzscheanşsm without the civil society which promotes individualism and privacy to a hitherto unknown degree, and without the writers like Constant and Humboldt who saw the ancient state as admirable in many respects, but as threatening to self-determination.  That threat was also present in the modern state in other forms.  The threat posed by the ancient or modern state could only be posed in that way because the modern state was more and more distinct from the authority of custom or of the sacral.  The power of the people was defined not as the gathering of individuals in the city centre, or the defence of popular custom, but with regard to representation of a dispersed people in central institutions, and new enlightened laws.

For Nietzsche, we should value an individuality which is only possible in the modern world, though he never directly acknowledges that, while looking bak to ancient possibility of an integrated individual in an integrated culture.  Laws best come from custom according to Nietzsche though he also questions the way that custom institutionalises cruelty, and then develops into forms of law distant from individuals.  The element of respect for custom can be found in 18th and 18th century liberal thought, but so can an interest in legal innovation for social progress.  The two could seem consistent by posing an evolutionary model, but even that cannot disguise the growing abstract and invented nature of law.

Nietzsche tries to get beyond the arbitrary, and external, nature of law by advocating a heroic legislation of  a grand politics over the future of Europe, or the inner capacity for self-command.  There is a rejection of commercial society as what makes us devote ourselves to the needs of others in order to make moony.  We lose autonomy in the wish to sell to others.  What Nietzsche offers as alternatives are partly the return of antique virtues, those of the solider and of hospitality.  None of this makes sense outside the evolutional of liberal thought and Nietzsche’s affirmation of some part of it behind the aggressive anti-liberal rhetoric.  We could say that he is closest to liberalism where liberalism is closest to antique republicanism, or at least concerned about the need to find forms of community to equal antique republics, as we see in a very persistent concern with the loss of military virtues, and sometimes of antique ideals of friendship.  The liberal thought of the time partly grows out of notions we find in Giambattista Vico (The New Science Concerning the Common Nature of the Nations) and Adam Ferguson (An Essay on the History of Civil Society) where there is an exploration of oscillation between heroic violent freedom and popular freedom under law, in which both have benefits and harms, an which can never be integrated.  There is a strong element of that in Montesquieu and Rousseau as well.