Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

May 5, 2006

What Justifies the Constitution

by Chris Byrne

A commenter over at Kims blog left this comment:

— What justifies the Constitution in the first place? — John T. Kennedy

It is a very important question, and one that people don’t ofetn think about. Even constitutionally minded folks who should know better havent really thought this one through.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The constitution is justified, because that, was ratified by the folks referred to, and contructed by the principles laid out in this:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Importantly, these documents, and the structure they create, are valid only because they re-affirm and limit what governments instituted among man can do to abrogate or limit those rights inherently posessed by the sovreign man.

The constituion is imperfect; any document is, any government is. Imperfect as it is however, it is the single greatest, and most important political document in modern history. It has established the form and structure of governance, for the greatest nation that has ever existed.

If we the people should ever decide that necessary change cannot be accomplished from within the structure defined by the constitution; it is our right as men to change it from without.

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

That is the safety valve. That’s what says “Ok, if this doesnt work, we get a do-over”.

But how does one fight against a government? How do you abolish the entrenched powers, and institute a new form of government as shall seem most likely to effect your safety and happiness?

Well the folks who wrote those documents above thought about that two, so they wrote this as well:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

As so many have said before me, the reason we have the second ammendment to the constitution is in case the government should ever decide to ignore the rest of the document.

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  • http://www.autodogmatic.com Neal

    Chris,

    That is a solid write up, but I think John was making more of a rhetorical statement as I’m fairly certain he’s already conclude on the answer to this question. The answer is based on a document written by Lysander Spooner called No Treason No. VI: The Constitution of No Authority. Here is JTK’s post at no-treason.com.

    From a contractual standpoint, the Constitution has no authority over any of us. Some interesting thoughts.

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    The constitution only has authority because we, as a society, decide it does. This, in fact, is the reason in contract has authority. All the legal stuff just institutes the social practice. You need only look at countries without strong social institutions to see what I mean. The Sudan, for example, has reasonably good contract laws. But the society ignores them and they have no power.

    Or, thinking about it another way, if we all decided to start ignoring traffic laws (common in many third world countries), it would become impossible for the government to enforce those laws. When the various Eastern European peoples decided that their communist governments had no authority over them, the authority went away in about 10 seconds flat. Social fabric and institutions are what determines whether governmental institutions and laws have any authority over us, or not.

  • http://www.autodogmatic.com Neal

    The argument against your statement that, “we, as a society, decide it does [have authority],” fails in that you and I never decided individually that it had any authority over us. How can we be governed by a contract we didn’t individually agree to?

  • http://www.federalrepublic.net Adam

    Neal stated the question “How can we be governed by a contract we didn’t individually agree to?” It seems to me that we individually agree to follow that contract by conforming the rules of the society in which we live, either by choice or default. Of course, one could choose not to follow the rules of society and be arrested because others in the society believe that you should follow those rules. Or the other choice would be to follow those rules for a specific period of time until you come across a place where those rules no longer matter – aka, you find a desert island and live there by yourself. The third option is to just flat out refuse, thereby killing yourself.

    I agree with Eric in that the constitution only has authority because society says it does. In reading these comments, I am reminded of the movie “V for Vendetta.” In the movie, Evey asks “V” whether he plans to change the world by blowing up a building, interpreted as a rather meaningless action at the time. “V” then responds “The building is a symbol, as is the act of destroying it. Symbols are given power by their people. By itself, a symbol is meaningless, but with enough people, blowing up a building can change the world.” Case in point, I believe this principle can be soundly applied to our constitution.

    Great article by the way.

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    Neal, you are trying to apply (as did Spooner) legal arguments to a social question. Social institutions come before contract law. As I said before, laws for contracts (and crimes and property, for that matter) come about to enforce and regulate existing social institutions. As long as the majority of our society believes the Constitution is binding, then it is. If any substantial minority were to decide otherwise, the result would be the dissolution of the contract and the authority of the government (this is exactly what happened in 1776 and 1861).

    Consider that you and I may decide that there is a binding agreement between us even though we have never met, never directly agreed to anything, never signed a piece of papers, etc. It might even occur without direct communication between the two of us. A contract is valid only so long as all parties agree that it is valid. Since the vast majority of Americans agree that the Constitution is binding and valid, it is. Which is why Spooner could never gain any traction.

    Oh, and by the way, I did, individually, agree to the authority of the Constitution. I did so by joining the Army and swearing the oath of enlistment.

  • http://pracs-blog.blogspot.com/ Phil

    If I may give an Aussies view here. The Declaration of Independence, and the US Constitution, are wonderful documents. But they did not arise from a vacuum as one man’s creation (and I am quite a fan of Thomas Jefferson’s.

    They did arise from the thinking of the time, and the 2 most obvious sources are Locke’s ‘Treatises on Governemnt’, and Blackstone’s ‘Commentaries on the Laws of England’

    I’ll borrow from a piece I wrote some years ago;

    “…Between 1765 and 1769, Sir William Blackstone published his epic work ‘Commentaries on the Laws of England’. This was the dominant law book in Britain, and the colonies (including for some time, North America) for the next century or so. In a very real sense he defined the common law, and the Constitution of Britain of the time. Part one of that work provides a background to English history. Blackstone was greatly impressed by the legacies of English history, including such defining milestones as the Magna Carta, and the Bill of Rights of 1689, which at that time, in contrast to our times, were accorded the respect of basic law. This, to a great extent, defines the foundation of Australian law (in fact, that of most of the English-speaking world), and greatly influenced the course of western legal and governmental practices, then and since.
    Blackstone distilled the law and constitution into what he called “…the principal absolute rights ……the three great and primary rights, of personal security, personal liberty, and private property…”.
    He went further, in declaring, “…But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment…”. He asserted that the Constitution established “…certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights…”, these being;
    The constitution, powers and privileges of parliament;
    The limitation of the kings prerogative (the limiting of arbitrary executive power, in modern times and terms ministerial or bureaucratic power);
    The right of the individual to apply to the courts for redress of injuries;
    The right of petitioning the king, or either house of parliament, for the redress of grievances;
    The fifth, and last auxiliary right , is that “…of having arms for their defence, suitable to their condition and degree, and such as are allowed by law..”. This is taken from the Bill of Rights of 1689, and is deemed necessary “..under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression…”.

    These days, many Englishmen and Australians wish that we had those concepts written in stone like our American cousins have done.

  • http://anarchangel.blogspot.com Chris

    I’m sorry, I don’t bother attempting to converse in any meainingful way about politics with the following:

    1. Pure anarchists
    2. Spoonerists
    3. Dedicated socialists and/or other form of collectivists
    4. Purist non-agression libertarians
    5. Purist pacifists
    6. Purist market/contract libertarians

    Why? Well I dont enjoy hitting myself in the face repeatedly with a hammer, and discussing politics with any of those folks is somewhat more painful , and far more pointless than that..

  • http://www.autodogmatic.com Neal

    Chris,

    Though funny to many, I’m sure, I’m really reaching for the real answer to your question “Why?” Why is it pointless? Because you are unchanged by their arguments and they are unchanged by yours? Or something else?

  • http://anarchangel.blogspot.com Chris

    Neal, it was intended to be “ha ha only serious”; in that those dedicated to the ideological positions listed above are in general not amenable to reasonable, practical, or pragmatic discussion with someone who does not substantially agree with them.

    Actually ideological purists in general are difficult to deal with, it is simply those ideologies listed that tend to be the most difficult for a minarchist like myself to tolerate.

  • http://anarchangel.blogspot.com Chris

    Oh and with regard to Spooners arguments, in the macro scale they have some merit, but individual anarchism as a whole is a non-viable macro-political philoshpy.

    It does work on an individual basis, but it assumes a society entirely comprised of informed rational actors enlightened self interest, and a perfect market without induced transactional costs.

    Anyone who knows anything about basic economics, or for that matter human history, knows that these assumptions are non-viable; and in my estimation always will be.

    As I said, there are interesting ideas in the individual anarchist school (spooner and rothbard notably), the problem is when these interesting philsophical premises are attempted in a practical absolute that they fail.

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    One of the truly significant problem with nearly every individual anarchism solution is that it disregards externalities.

  • http://www.autodogmatic.com Neal

    Chris,

    I know you were being funny, but I actually did want to know your thoughts behind your statement. I don’t agree with your statement that:

    Anyone who knows anything about basic economics, or for that matter human history, knows that these assumptions are non-viable; and in my estimation always will be.

    However, I don’t think it would serve us to debate it. I do appreciate your additional discourse on your original statement.

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