Aug
Damn Right I’m A Libertarian
As the march toward November 2nd, 2010 continues, it really turns my stomach to see more and more political rhetoric where candidates are now claiming to be MORE “constitutional” than their opponent. For example, during the primaries in Utah’s U.S. Senate race, both candidates Mike Lee and Tim Bridgewater laid claim to the Constitution as their guide. Please explain how EITHER of these guys call themselves fans of the Constitution yet oppose birthright citizenship?
And where in the Constitution does it talk about Social Security? But constitutional “expert” Mike Lee offers the unconstitutional solution of simply raising the retirement age but isn’t that a bit like re-arranging the deck chairs on the Titanic? You don’t have to tweak already doomed institutions. For example, as an entrepreneur, I helped to found the leading consulting firm in the Reverse Mortgage space to help create market-based solutions to the problem of senior funding.
How can these Constitutional Experts support the unconstitutional War on Drugs (remember, Prohibition? You need a Constitutional Amendment to make prohibition the law of the land and last I checked, we never ratified an Amendment to prohibit drugs).
And interesting Constitutional aside for Utahns, the Twenty-first Amendment, which ended prohibition, was ratified when Utah became the state to cast the deciding 36th vote to ratify the Twenty-first Amendment on December 5, 1933. Utah’s subsequent infamous and unusual liquor laws were a direct result of its decisive vote to end the government enforced prohibition of alcohol.
Recently, a headline at the satirical Onion website read: Area Man Passionate Defender Of What He Imagines Constitution To Be. I call these types “A La Carte Constitutionalists”. You know the type, they pick and choose the parts of the Constitution they like and disregard the rest. Their piecemeal approach may be truly deceitful or merely done for expediency’s sake (e.g., being a “constitutionalist” makes a great sound-byte) but either way it is wrong.
“[i]t is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted “checks and balances” and “separation of powers” in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers.” – Murray Rothbard
While I do think a move back toward our Constitution and toward truly limited-government of the Founding Fathers is an important goal, I don’t like to call myself a “constitutionalist” because it really isn’t a very clear term. I mean, Barack Obama is a Constitutional Scholar too but we couldn’t be further apart with regards to policy. Now while I favor constitutional government there are things about the U.S. Constitution that I don’t like, for example the 16th Amendment. Often when I suggest to self-described Constitutionalists that they must then favor the institution of the IRS they often counter by saying with a smug smile, “No, I favor the original Constitution”.
My response then usually sounds something like:
“oh so you support the 3/5th Clause which effectively says that each slave is equivalent to 3/5th of a free man when apportioning how many Representatives each state received (also in the Electoral College)?”
or
“oh so you don’t support the right of women to vote and feel that the 19th Amendment which prohibits the state from denying people the right to vote based upon gender?”
Your ads will be inserted here by
Easy Plugin for AdSense.
Please go to the plugin admin page to
Paste your ad code OR
Suppress this ad slot.
Incidently, Utah was the second territory in the U.S. to grant women suffrage in 1870, under the impression that, if given the right to vote, that Utah women would vote to make polygamy illegal. However, in 1887 the women of Utah were disenfranchised by the United States Congress under the Edmunds–Tucker Act when Utah women exercised their right to votes in favor of polygamy. Women’s suffrage in Utah was restored a few years later when Utah’s constitution restored woman’s right to vote since the original U.S Constitution didn’t offer this right until the passage of the 19th Amendment).
In the sense that there are two main political parties in the United States, broadly speaking, there are two main types of “Constitutionalists”; those that subscribe to “Originalism” and those that believe in a “Living Constitution”. The funny thing is that there has been a term being thrown around, “strict Constitutionalist”, that I believe means being an “Originalist” with regards to interpreting the Constitution. The term “strict constitutionalist” is likely a mutation of the term “strict constructionist”, a term with too many interpretations to digress into for the purposes of this essay.
Supreme Court Justice Stephen Breyer would fall into the Living Constitution camp while Justice Antonin Scalia would be considered an Originalist. Living Constitution folks hold that the Constitution’s boundaries are plastic and should serve the needs of society as it evolves. This means that the Constitution’s meaning can shift to include both of Isiah Berlin’s concepts of negative and positive liberty. “Living Constitution” judges are often perjoratively called “Activist judges” by their opposition. Ultimately the Living Document interpretation of the Constitution whither when it is understood that “If the constitution can mean anything, then the constitution means nothing”.
Originalist judges try try to interpret the Constitution as the Founders would have. As Justice Scalia said in a recent 60 Minutes interview:
“…it isn’t the mindset. It’s what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution,”
This is tantamount to saying that he and other “Originalist” have some sort of postcognitive psychic ability to channel the Founding Fathers and somehow know what they meant (maybe they all wear bracelets that read “WWFFD”). Understanding the meaning of words across time is a difficult enough task for trained etymologists and historians but I think it is fair to say that it is really impossible to know how the Founders would think about technology like stem-cell research, nuclear missiles, or the internet until someone invents a time-machine. I mean how does one really determine if someone knows better than other what the words of the Founders mean in situations that the Founders could have never imagined?
The other logical flaw with Originalism is the fact that the Ninth Amendment does establish a rule of constitutional interpretation since it clearly protects those rights which the founders had not thought to list explicitly:
“The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.”
Terms have meaning (which ultimately ends up how they are used in language). The problem is that the language of politics is sometimes sloppy and applied with very little intension. This allows words like “Liberal” to be changed to eventually mean their exact opposite. Unfortunately, the term liberal is now largely synonymous with ‘progressive’ and when Hayek calls himself a classical liberal, not a conservative, too few people understand the true meaning he wanted to convey. Likewise, “conservative” now is generally used to convey neo-conservative policies, not paleo-conservative ones. So now, through misuse of terms the people are offered a Morton’s Fork of big government Social Democrats and big government Conservative Republicans.
Kind regards,
Jake Shannon
Libertarian for U.S. Congress
Utah’s 3rd Congressional District
For more information visit http://www.jakeshannonforcongress.com.
Jake Shannon is the author and creator of http://www.jakeshannonforcongress.com where you’ll find a wealth of information on constitutional amendment.