No, I’m not speaking of 1994. I mean to speak more abstractly for a moment. I left a comment over at Kevin’s that I thought would be worth turning into a post, and maybe getting some discussion going over here as well.
Someone opined that “I am absolutely in support of -a- constitution that places explicit limits on government and I demand that the government respect those limits.” which is a statement I would agree with. But what happens when the people don’t demand that? What happens when the people keep electing representatives that weaken those limits? What if we can’t even agree on what those limits are?
I agree you need a written constitution that limits government, but people need to agree with the philosophical underpinnings of the document. No limits will long stand if the people don’t think those limits are important. How, over the long run, you can sustain written limits on government in the face of a people opposed or indifferent to the limits without somehow limiting their suffrage, so that the wrong people don’t get the vote. If you did this, I don’t know whether it would be moral.
We are a constitutional republic, rather than a democracy, but all that means is it takes a longer, takes more consensus, and takes more work to fundamentally alter the structure of the government. Can you see folks arguing today about whether Congress can establish a national bank? Over whether the federal government can purchase land? Our founders squabbled about this incessantly, but most people in modern times would agree that The Constitution permits the government to exercise power in this manner. The Federalists won on these points. Is that legitimate?
Popular Sovereignty as a source of government legitimacy presents a serious challenge for attempts to limit government absolutely. Some thinkers have, for this reason, rejected popular sovereignty as a source of legitimacy. You can make those kinds of academic arguments, but at the end of the day, I think they are just that. At some point you have to come to terms with the fact that the people are ultimately in the drivers seat over the long term no matter how clever a system of checks and balances you devise.
That isn’t say we should just acquiesce to this dangerous notion of a “Living Constitution”. In principle I believe in originalism, and I think we need to make the intellectual case for it. The task before us is to continue the same squabbling over the meaning of The Constitution that’s been happening over the past 232 years of this nation’s history. If we want a limited government of enumerated powers, we have to argue why that’s important, and convince people. There is any way around this in a republican society.
If you believe in Popular Sovereignty, I don’t think there can be any right of revolution that’s not supported (or acquiesced to) at least a majority of the people provided you have a functioning, elected government. If you have an elected government, the majority can always change it through the ballot box. So where does that leave revolution? Certainly not with any concept of an organic revolution of the whole of The People. Where you do not have the support of the people, can you justify a violent revolution? At what point does a revolution just become a civil war? What do you do when two peoples have such irreconcilable differences that they can no longer live peacefully among one another?
Peoples can part ways, and have many times throughout history, either through peaceful means (India) or through violent means (USA). Before that can happen, however, you need to create a “people” that share some kind of geographical area and culture you could speak of as a new nation. Outside of that, I don’t think revolution has much of a role to play in a situation where republican institutions are still functioning.
This reminds me of something else that I read recently.
http://www.theothersideofkim.com/index.php/tos/single/19635/
“Popular sovereignty” has far too much innocent blood to it’s account to be “believed in”. Godwin be burned — you are surely not proposing that resistance to Nazism was unjustified since the party was elected by legal, democratic processes?
Let me sum up in terms even a Tory can understand: human rights are not granted by democratic process, and cannot be revoked by democratic process. If you try, then you are the one starting the revolution.
I suppose it depends on your definition of “functioning”. The government we have may have been elected by the populace but it routinely ignores the constraints placed on it by the Constitution. Even if the (ignorant) masses approve of this it is still dysfunctional.
And, just a side note, when I discuss these issues with you Sebastion, I’m ranting against Socialism becoming the dominant meme in this country. Second Amendment issues mean nothing. It is the entire system that is dysfunctional and in need of repair. Drawing a line in the sand over gun confiscations is stupid. If you wait that long, you have already lost. It needs to be pointed out, however, that the socialists have learned that if they act like NAZI’s they will lose (again). They are now progressive and bi-partisan. There won’t be any jack booted thugs. When the majority of people become aware that they have been had, it will be too late.
“Popular sovereignty†has far too much innocent blood to it’s account to be “believed inâ€. Godwin be burned — you are surely not proposing that resistance to Nazism was unjustified since the party was elected by legal, democratic processes?
European government conceptually are Parliamentary Sovereignty regimes. The fact that a regime is democratically elected doesn’t give it legitimacy. From the beginning, the Nazis were engaging in practices that were meant to limit democratic legitimacy. Post Reichstag fire, I think it would be hard to argue that the Nazi regime was in any way legitimate. Germany was an utter mess at the time, so in a lot of ways it’s hard to argue it was even really a functioning government.
I suppose it depends on your definition of “functioningâ€. The government we have may have been elected by the populace but it routinely ignores the constraints placed on it by the Constitution. Even if the (ignorant) masses approve of this it is still dysfunctional.
As my personal opinion, I agree that’s it’s dysfunctional. I don’t see how the federal government has the power to, say, regulate car jacking (which they do) or regulate possession of guns (which they do). None of these things are enumerated powers under the constitution.
But to what extent do you get to decide you own interpretation of the constitution and act on it? I think that’s a pretty fundamental question, and I don’t think the answer is an easy one.
I don’t think there is a way to mutually satisfy popular sovereignty and individual rights. The nature of popular sovereignty is that sooner or later, the majority decides it wants to tax or license or ban some peaceful exercise of liberty by a minority. So the question is, what then? Liberty or democracy?
I come down on the side of individual liberty, which means I’m not inherently impressed by popular sovereignty, except as a practical concern. To be explicit, I don’t believe in popular sovereignty for its own sake. I draw a distinction between a minority or an individual imposing laws, taxes or political rule on a majority and a minority or individual “imposing” its freedom to exercise natural rights on a majority. I’m open to a practical and strategic objections to that, but not objections in principle.
I admit I don’t have a good solution myself yet. Its possible we’re just approaching the same problem from different ends, using different language.
Connie du Toit, who I consider a very sharp person, has extended your logic of popular sovereignty to argue that, if I understand her, there is practically nothing a majority cannot do in politics or change in laws and constitution that would be improper. I disagree, but it is the logical extension of treating majority rule as a virtue or ideal.
Dodge the question much? I’ll say it again, bluntly: majority rule does not trump human rights. Period.
I am not claiming that it universally does. Obviously if the majority votes, or even vote for representative who vote, to stick an unpopular minority on to cattle cars to send them off to be exterminated, I would agree that’s such an immoral and depraved act that all bets are off. There are limits.
But where those limits are and should be in a functioning republic is not a simple question, and the answer, I think, is even less simple than the question.
Well it’s nice to hear that there are limits to your Hobbesian philosophy.
Still, you’ve gone awry somewhere in the mid-18th century. We don’t have a republic — we have a constitutional republic. The implied social contract has been replaced with an explicit one. That contract constrains popular sovereignty with some novel concepts such as separation of powers and inalienable rights.
Unconstrained popular sovereignty has been proven throughout history as the cradle of tyranny. Let us be grateful that we have something marginally better in this country, for as long as we can keep it. I, for one, intend to try.
I intend to try too. Because I think the only way you can win in the long term is to preserve the values that are enshrined in The Constitution among the population. There are options beyond that, but I wouldn’t say they are winning options.
It’s no shrine. It’s the only contract holding us together as a nation. Any government that dispenses with it declares war on the governed. Most of the people are Tories, I’ll admit, but the Whigian 3% is absolutely justified in the defense of their rights by force. Without our Constitution, the only defense of liberty is the tangible threat of force – the Hobbesian default.
Feel free to surrender when it gets too rough for you.
But to what extent do you get to decide you own interpretation of the constitution and act on it?
The Constitution was written in plain language so that everyone could understand it. To whit: “well regulated” means practice with your arms; “keep” means own; and “bear” means carry. The rest of it is similarly plain, like where it says that powers not specifically given to the government are reserved to the people. But if you indoctrinate them that their rights are bad for them and “we are hear to help because we are the only ones capable” then the citizens can keep their nanny state socialism and strict originalists will be shunned as “redneck whacko NRA members that are bitter and clinging”. Correct?
[I]In principle I believe in originalism,[/I}
Except for that whole SNBI thing, right Sebastian?
Even if the people elect leaders that ignore the constitution – and continue to elect those leaders – unconstitutional is unconstitutional. That’s why we have a judicial branch – assuming that it is functioning correctly.
As others have said, the constitution is our contract. The only people who have credibility for their actions for or against the government are the ones that abide by that contract. It’s not a negotiation or deliberation, for the most part. Yes, we should be able to rely on the courts to establish where the beginning and the end of constitutionality lies.
All that said, because I believe that our constitution contains all the things we need to know about how to govern ourselves, I do believe that if the will of the people calls for constitutional change, the option and process is specifically laid out. There is no other way around it.
But what powers are given to the government? What does the interstate commerce clause mean? Does Congress have the power to regulate airlines? Does it have the power to regulate prescription drugs? Medical devices? Canned foods? Can it build highways? Buy property? Protect endangered species? Regulate discharge of pollution into the air and waterways?
I agree some parts of the constitution are clear an unambiguous. But even the second amendment, can you keep chemical warfare agents in your home? Stash some plutonium in the back yard? Is a surface to air missile protected? Cruise missile?
I’m not suggesting answer to any of these, just trying to give an idea of how complicated the questions are. These are the kinds of things judges have to decide, and judges, like all men, are fallible.
One of the problems is that, despite what we may want to believe, our Constitution is unarguably conventional, not natural law. It only has the force of law as long as We the People give it that force of law. It’s entirely possible for us to reduce the language of the Constitution to gobbledy-gook through our societal apathy and ignorance.
The idea that majority rule doesn’t trump human rights doesn’t really make sense, at least from a conventional vs. natural law standpoint. How do you think we decide what we consider to be human rights? Human rights in 1776 were much different than they were in 1566, just as they are different than what we see as human rights today.
Sebastian is absolutely correct that as a realistic and not theoretical matter, the People ultimately rule. If wereally want to see things change, we might start by trying to educate the 97% of Americans who think Hobbes is only Calvin’s stuffed tiger and have no clue what the difference between Tories and Whigs are. An uneducated populace isn’t going to demand what’s rightfully theirs. They’re too ignorant to know what they’re missing, and too content with what they have to want more.
Unfortunately, when you have one branch of the government whose sole existence is to create new laws, power grabbing is going to be the name of the game because it is very lucrative. The recent Blago incident pulled the skirt up a bit to show those that are paying attention how corroded the legislative branch is and how much collusion is going on with executive branch.
The Judicial Branch should the be the check against this isn’t and hasn’t been doing their job for generations. One of the biggest issues is that the legislature can introduce as many new laws, constitutional or not and have them become law. Multiply that by years of sessions and you can see that the judicial branch can’t and won’t keep up. Not only that, they won’t take cases unless you have standing. Write a law slick enough, you will never get it removed even if unconstitutional.
Anon said: “An uneducated populace isn’t going to demand what’s rightfully theirs. They’re too ignorant to know what they’re missing, and too content with what they have to want more.”
Just as the judicial system can’t keep up, try being a normal citizen who is working, caring for family, hobbies, etc and also trying to stay diligent on what the government is doing. People can’t keep up with the sheer volume of crap and misdirection coming out of the government. I still get the California Rifle and Pistol magazine and just the infringements in one state for one right is staggering. Bills just keep getting introduced, rejected, modified, and recycled continuously while adding hundreds more every year. Insane!
There are ways to address this but nobody in power would stand for it as it would be a drastic change. Term Limits, limited salaries, manadatory law expiration, etc.
The goal would be to put the burden back on the legislature and put them back in their place. Unrestrained legislatures are destroying this country.
6kings,
I am in wholehearted agreement with you.
What has happened is notions of behavior and conduct have been inverted. In the Founder’s day, they wrote the Constitution to restrict what the Government could do. And had men that were taught and believed that if it wasn’t explicitly set out as permitted, they didn’t do it. They were fallible but they believed if the document didn’t grant them the power they wanted to exercise, their notions of conduct and ethics say that power go unexercised.
In modern times we have the inverse. Today, politicians point to the absence of a prohibition on conduct as permission to engage in it. They read past the limited powers that are permissible and spelled out in the Constitution and believe that it was not a complete list. They no longer approach the exercise of power from an ethics and honor standpoint. They no longer act with the first thought being “Does the Constitution allow me to do this and if so, is this in the best interests of individual liberty?”.
If the Founders had a flaw, it was the flaw that they believed men would remain honorable. History has shown that despite their personal honor, honor is a scarce commodity that can be corrupted out of ordinary men. And has been.
Had they had that foresight beyond the social constructs of their time, I suspect they would have been far more explicit in spelling out the limits of what the Government absolutely could and could not do.
We live in a world of “Constitution doesn’t say I can’t!” and these politicians justifying that thinking with every convoluted trick they can imagine.
I am in full favor of several amendments to the Constitution to cover the very issues you address.
Too many people are eligible to vote. I like Heinlein’s idea of having to solve a quadratic equation to qualify for the franchise. I’d rather not be governed by people not smart enough to memorize, or write on their wrists, the Quadratic Formula.
The harsh reality is that if enough of the population buys into bad ideas, the only way to prevent the government from doing what it wants involves massive bloodshed–and the results of such a revolutionary action are likely to be even worse than hoping that sense eventually prevails.
The left is in near complete control of the education and mass communications system–and that’s part of why we are losing the battle, maybe not so much on guns, but on the larger question of whether government should have limits.