Monday, January 10, 2011

It the Constitution True?

Just because the Founders ratified a Constitution as they understood it does not mean that we ratify one with the same meaning. We ratify our Constitution, as we understand it, or not. We cannot justly be bound by others' choices.

Consider the Constitution as might a philosopher of language, asking, "Is the preamble's claim about ordaining and establishing the Constitution true?" The easy answer is, "Yes, it was made true by the ratification of at least nine state conventions." That looks like as near a truism as history can offer. But does that same preamble hold true today? The answer depends on whether we the present people ordain and establish the Constitution.

Suppose, by way of thought experiment, that a meteorite struck the nascent U.S., wiping it out but leaving documentary evidence, such as the Constitution, abroad. An Englishman reading that Constitution after the disaster would observe, "Yes, they did ordain and establish that Constitution. But it nowhere survives, today. The Constitution died in that huge gaping crater that was once the United States. Taken in the present-tense, the Constitution lies. We can understand it only as a historical artifact." Less dramatically, the same would hold true if everybody in the U.S. suddenly decided that it just wasn't worth the trouble, and magically gave up the collective hallucination of a federal government. Unless we keep it alive with our consent, the Constitution means nothing more than an account of what once was.

The choice boils down to this: If you rely solely on original meaning, you will ordain and establish a Constitution that was. If you want to ordain and establish the Constitution for we, the living People, you have read it through living eyes.


Jonathan said...

I guess I don't understand this. If "everybody in the U.S. suddenly decided that it just wasn't worth the trouble, and magically gave up the collective hallucination of a federal government" we would still have to pass a constitutional amendment (a short one) that says everything before this amendment (and including this one, Bertrand Russell?) is null and void. I am bound by the accident of birth to consent to the Constitution, and so bound until I leave the US. And the plain original meaning (to the extent it can be discerned) seems to be perfectly logcal as a starting point for what I've implicitly consented to -- other wise it's tennis without a net. And the capacity to alter it forever by current amendment solves the problem of continuing consent.

Tom W. Bell said...


First: No. If everybody decided to ignore the Constitution, we would not need to amend it to render it ineffective. Ignored, it would have no force, and we would thus have no need to obey its strictures.

Second, it cannot be true that "I am bound by the accident of birth to consent to the Constitution;" not, leastwise, if "consent" has any meaning.

Jonathan said...

So I post in January. you answer n April. I answer back in August. Cool!

Consent in this case is implicit, as it is combined with the absolute right to go somewhere else. It's a little difficult to get informed consent from newborns, or indeed from anyone.

Tom W. Bell said...

The argument that staying in the country amounts to implied consent doesn't carry much weight, despite its popularity, because people put up with bad governance for a variety of reasons. You might stay here rather than move abroad because you like the culture, for instance, or the weather, or because you have local ties. None of those reasons equate to saying "I consent to the government."

Informed consent is not at all uncommon; it forms the bedrock of the market economy, and obtains with each routine, mutually consensual exchange.