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Wednesday, October 13, 2004
Consensus And Constitutional Order
Much of the acrimony that festoons the American political dialogue arises from moral sources: individuals' beliefs about right and wrong, and the role of the State in discriminating between them. Because moral positions are almost always premises rather than conclusions, two persons whose morals differ on a given subject can seldom argue usefully about that subject. They can hurl barbs and impugn each other's characters, but that's about all.
It is noteworthy that moral premises are given absolutely no place in the Constitution, our fundamental legal document. The Constitution prescribes procedures, forbids various levels of government from doing various things, and defines a method for amending it, should there be an adequate consensus for doing so. Nowhere does it say, "This or that is morally unacceptable, and must not be tolerated." Nowhere does it say, "This or that is morally obligatory, and must be imposed on all men by the force of law." Its provisions for amendment are an admission that, however firm the convictions of its Framers that it was the best legal foundation ever devised, they knew they were but men, that their powers were limited, and that they could be wrong.
The past ten years' reflections on this fact are why I'm no longer a strict, doctrinaire natural-rights libertarian. They're also why I strive not to condemn others whose convictions about public policy differ from mine. I'll condemn for personal failings, but not for divergent beliefs about social causality and social order.
Constitutional order -- the overwhelming, unforced assent to the legitimacy of the existing political system and its works -- cannot be maintained except under the consensus assumption that processes alone determine legitimacy. Since the federal Constitution is the supreme law of the land, it is also the foundation for all acceptable arguments about legitimacy in governance.
Let's consider two test cases of this proposition: Election 2000 and Roe v. Wade.
Election 2000 was a nightmare because the loser's camp, unhappy with the result and hoping that the slenderness of its defeat could be undone, strained to overturn the processes in place for determining the outcome of Florida's balloting. Yet Florida's election law was entirely in accord with Constitutional provisions, and the actions of Secretary of State Katherine Harris to enforce that law were entirely upright and honorable. When the Supreme Court opined in Bush v. Gore that the challenges had traduced the Florida state legislature's Constitutional authority, it was merely reading the plain words of the document to persons who ought to have known better. It was defending the process, not the result. Democrats' condemnation of the decision calls into question whether they might attack the analogous legal process of any state in a subsequent election, or refuse to accept another president-elect under broadly comparable circumstances.
One consequence of the Election 2000 legal struggle has been a large-scale rejection of the legitimacy of the Electoral College scheme. Despite its Constitutionality, its age, and its performance over more than two centuries, many are now calling for it to be undone -- or worse, that its verdict should be ignored in favor of the verdict of the national popular vote in future cases of this type.
In contrast, Roe v. Wade was, in the words of dissenting Justice Byron White, "an exercise in raw judicial power." No clause of the Constitution gives the federal government, or the United States Supreme Court, jurisdiction over the subject matter of Roe v. Wade. It was, and ought to have remained, entirely a matter for state law. But the Supreme Court chose to venture beyond its Constitutionally defined authority in a manner no one could have foreseen, and Congress and the president chose not to rein it in by the exercise of their own legitimate powers. All three branches of the federal government betrayed their sworn duty to defend the Constitutional process.
In consequence, the Supreme Court has been tacitly deeded the final word about virtually everything, regardless of the Constitutional constraints on its jurisdiction. Some would say that this is only a culmination of a trend that reaches back to Marbury v. Madison, and their argument is not to be lightly dismissed. However, Roe v. Wade appears to be the first case where the Court asserted unbounded powers of review over an issue of national importance where there was no conceivable Constitutional foundation upon which it could build.
Consensus about moral convictions can never be unanimous. It's in the nature of men to disagree, to challenge one another's premises, and to defend their own convictions even in the face of substantial evidence against them. Depending upon time, place, and circumstance, even an outright murder will occasionally be condoned -- or celebrated as a public service.
Amendable processes, on the other hand, can command consensus. If they're neutral among contestants, like the rules of a game, all the parties affected by them can agree to them even if they would have preferred different ones. There were many in the days of the Founding who dissented from one or another of the Constitution's provisions. Yet they eventually endorsed the document, and its claim to be the Supreme Law Of The Land. They saw the foundations of an enduring social order in it, and hoped that, given time, its flaws would be corrected by a consensus that had not yet emerged.
We will never know enough to be absolutely doctrinaire about social policy or the proper relations between political power and the moral law. While frame our contentions within the neutral processes prescribed by our Constitution, we have a good chance to maintain social cohesion and public order. When we depart from it, we risk the dissolution of all order and the loss of legitimacy itself. Those who vilify their political opponents for their policy preferences, rather than arguing against them as gentlemen would and allowing consensus to decide, should give that a moment's thought.
Those interested in following the development of this subject will also enjoy -- or revile -- the other essays in this series:
- Consensus And Constitutional Order Part II
- Consensus And Constitutional Order Part Three: Our Foreign Correspondents
- Consensus And Constitutional Order Part Four: Failures Of Consensus
- Consensus And Constitutional Order Part Five: Unintended Consequences
- Consensus And Constitutional Order Part Six: Look To Your Margins!
- Consensus And Constitutional Order Part Seven: Density Effects
- Consensus And Constitutional Order Part Eight: Conceptual And Nomenclatural Needs
- Consensus And Constitutional Order: The One-Vote Effect
Comments
Fran,
I whole-heartedly agree with this post! While I don’t think I could be a genuine Libertarian, I could easily be a Constitutionalist. If there were a new political party to be formed, I would argue that it should adhere strictly to the Constitution. This would place it somewhere to the right of the current Republican party (probably a greater distance than most appreciate).There is speculation that if the Democrats fall as badly as some think, that their party will be taken over by the lunatic left fringe. My personal feeling is that they already have been, and that this will remove them (the Democrats) from useful contention in the political arena in the future.
Meanwhile, the Republicans have drifted toward, or even beyond, the center of the political spectrum, leaving a possible place for a new conservative party.
Power to the people!
Vote the Conservative Party!
Uphold the Constitution!
Well, it’s nice to dream.
Posted by on 10/13/2004 at 03:08 PM
