Wednesday, February 18, 2009

Sacred pieces of paper

In the 18th and 19th century, constitutionalism was a popular political philosophy. Annoyed by despotic acts of their monarchic rulers, people figured that written limitations on a king's power would stop him from abusing his position too much. Thus, instead of demanding the abolition of monarchic rule, the popular sentiment was that a constitution could be introduced to keep the balance between liberty and power.

Classical liberals and contemporary constitutionalists cling to this idea. Believing in the necessity of a state, they argue that a liberty-oriented constitution jealously guarded by a liberty-loving population can guarantee the sustainability of a minarchist state (sometimes denigratingly referred to as a "night watchman state") and enable liberty in a statist framework.

However, there are several major concerns worth considering. First, if people need to have a libertarian attitude to keep a constitution alive, we might as well not have one; for a libertarian people will demand sufficient restrictions on state action by itself, whereas a non-libertarian populace cannot be stopped by a piece of paper anyway. That's the main problem with a constitution; as George W. Bush so beautifully put it, a constitution is "just a goddamned piece of paper". It may be a revered piece of paper that everyone pretends to worship, but at the end of the day, it is subject to the political whims of a time, not the other way round. There is no magic involved here, only paper and ink.

Furthermore, constitutions tend to give legitimacy to bad actions. In the absence of a constitution, a king's taxation powers were considered a legal gray area. Even though nobody had signed a contract with the king, it was expected that he should fulfill his part of the protection racket arrangement - or else his claims for tax money would become null and void. With an active constitution mandating taxation powers to government, there is still no contract signed (except for an obscure 'social contract'), but states which do not fulfill their duty of protecting citizens can point to the constitution for continued tax claims - after all, if a constitution has no legitimacy, they say, you don't have any rights whatsoever. Either you pay according to the constitution or you lose your constitutional rights. Thereby, natural rights that predated the drafting of a constitution become mere legislation bound to your compliance with state violence.

And even then, it is by no means secure that these constitutional rights will forever be upheld. After all, a constitution is subject to interpretation by states and their courts. With incremental distortions or conflations of certain articles, their actual meaning can be easily eroded and transformed into a pro-state position. Consider, for example, the Second Amendment. It states quite clearly that every individual has a right to keep and bear arms. After decades of distortion and creative interpretation of punctuation and semantics, we are now on the brink of a Supreme Court judgment that defines this Amendment as granting arms rights to state militias only. That way, the original intent of the Amendment, another balance of power by allowing ordinary citizens to guard themselves against tyranny, has been destroyed completely.

Finally, who says that constitutions have to be libertarian? Some contemporary constitutions seem to have almost completely abandoned the idea of limiting state powers and instead function as a regulatory element that promises welfare and affirmative action to its subjects while already infringing upon real rights in the respective articles. You don't believe me? Check out the German Grundgesetz:
Article 2, (1):
Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

Article 3, (3):
No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.

Article 5, (1):
Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures [...]
These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.

Article 7, (1):
The entire school system shall be under the supervision of the state.
The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to state schools shall require the approval of the state and shall be subject to the laws of the Länder.

Article 14, (2):
Property entails obligations. Its use shall also serve the public good.
And so on. Americans tend to think of constitutions as limits to state power, and while that was indeed the original intent behind them, it's not necessarily the only purpose of a constitution anymore today.

In closing, we have to admit that pieces of paper do not effectively keep a state in check. Sometimes, they even aid it in growing. Libertarians should seek for more appropriate tools to preserve liberty.

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