Sunday, May 16, 2010

The Chaos of the Constitution

If you try to search for common ground on which conservatives are met with contemporary liberals, you'll notice that both groups have their fair share of people who appeal to the Constitution when arguing in favor of their opinions as symbolized as propositions. Numerous conservative and modern liberal groups appeal to the Constitution to reinforce their positions such as the ACLU which appeals, among others, to the 1st Amendment and to the 5th Amendment, and the NRA which appeals to the 2nd Amendment.

The argument from the Constitution involves the assertion of the claim that one's belief (as expressed in the form of a proposition) corresponds harmoniously with the Constitution, coupled with the further claim that propositions that correspond with the Constitution in such a way are true. Finally, these two claims are used as premises in a deductive syllogism to yield the conclusion that one's initial proposition is therefore true. A formal version of the argument is below:

-My proposition is a proposition that is congruent with the Constitution or with a section of the Constitution.

-All propositions that are congruent with the Constitution or with a section of the Constitution are true propositions.

-Therefore, my proposition is a true proposition.

The popularity behind the above argument from the Constitution comes, in part, from the general public veneration of the Constitution itself as the law of the land as well as the deference many people display towards the Founding Fathers who drafted the Constitution. Now if one tasks oneself with opposing the expansion of government on legal grounds, then sound constitutional arguments make for some of the best, most effective means towards that end (the futility of arguing from the non-aggression principle in front of the Supreme Court comes to mind). However, the Constitution, while admittedly perfectable, is far from perfect. History admirably demonstrates that the Constitution is, among other things, sufficiently vague and ambiguous to enable ambitious statists to form very broad interpretations of it - interpretations purporting to legally justify socio-economically detrimental conduct from the government.

For example, the Commerce Clause. Formally known as Article 1, Section 8, Clause 3 of the U.S. Constitution, the Commerce Clause recognizes the legal right (a legal sanction to the performance of a specific action) of the government to "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The questions that the Commerce Clauses begs (literally) are obvious: What does "regulate" mean? What does "commerce" mean? What acts of government are included within the class of "acts of government that conform to the Commerce Clause?"

Was it not said of the majority of the New Deal programs that they were legally justified according to the Commerce Clause? Has it not also been demonstrated that those same undertakings turned what would have been a normal recession by 19th century standards into an unprecedented depression? The conflict here is clear: arguments from the Constitution can be used to legally justify deranged, socio-economic policies. No doubt, many pro-New Dealers implicitly offered the following argument for each of their beloved programs:

-"Program X of the New Deal is legally justified" is a proposition that is congruent with the Constitution or with a section of the Constitution.

-All propositions that are congruent with the Constitution or with a section of the Constitution are true propositions.

-Therefore, "Program X of the New Deal is legally justified" is a true proposition.

How can one counter this argument from the Constitution with another argument from the Constitution? The above argument depends for its soundness upon a generous (to the government) definition of the word "regulate." Who may argue that such a definition is legally mistaken? Why is the broad definition of "regulate" erroneous from a legal standpoint?

Some have adopted the Originalist approach towards the Constitution which holds that "the meaning of the Constitution should be settled by reference to the original understanding of those who ratified it." By contrast, Popular Will theory holds "that proper judicial decision-making must regard the will of the people as all-important." Minimalist theory endorses a policy "of saying no more than necessary to justify an outcome, and leaving as much as possible undecided." On the other hand, living Constitutionalists argue that interpretations of the Constitution should be sufficiently broad to adapt to socio-economic changes. Which legal method among these is the correct one?

It is not enough, for a believer in capitalism and reduced government, merely to employ the argument from the Constitution because the minor premise (the first one) asserts a relation of terms that can be simply denied by opponents of capitalism. If one knows that, in fact, a given proposition is congruent with the Constitution, then one must know what the Constitution says. Therefore, knowing what the Constitution says is a necessary condition of knowing that a given proposition is congruent with the Constitution. However, if one does not know what the Constitution says, then one does not know that a given proposition, including one's own, is congruent with it.

Well, what does the Constitution say? As should be apparent by now, theories on how to interpret the law are ultimately based upon political philosophies. Take the proposition that "Congress should regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Should "regulate commerce" mean "ensure that commerce occurs in the absence of coercive interference" or should it mean "subject commerce to supervision and forcible governance?" Whether one believes the former or the latter depends upon what one believes the government should do in general? This is where economics and ethics must inform any argument for politico-economic freedom. Economic theory demonstrates that government intervention, by eliminating the necessary condition for continued growth, prosperity, and progress - the absence of coercion - that, by doing so, it causes a whole host of social problems from unemployment to price inflation to business cycles. Ethics demonstrates that if the absence of coercion is a necessary condition for human progress, then it should be an end pursued by those concerned with such progress.

So, when defending gun ownership and opposing gun control, its best to employ arguments from ethics and economics in conjunction with an argument from the Constitution that involves appealing to the 2nd Amendment. Its not enough to state merely that the right to own a gun is recognized by the Constitution. Social science demonstrates that gun control policies end up rendering law-abiding citizens defenseless by disarming them in an environment where criminals willfully disregard such policies. Ethics shows us that if we value safety, that therefore we show oppose gun control laws. With ethics and social science, we have arguments from practicality, whereas with the Constitution we have arguments from legality.

-Smith, Tara. "Why Originalism Won't Die - Common Mistakes in Competing Theories of Judicial Interpretation." Duke Journal of Constitutional Law and Public Policy 2 (2007): 159-215. Social Science Research Network. Web. 16 May 2010.

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