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Wednesday, November 13, 2013

Keep Your Dead Hands Off Our Body Politic

[N]o society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.

 - Thomas Jefferson to James Madison, September 6, 1789

I guess Jefferson was right so far as he went, but I wouldn't put too much stock in his constitutional ideas any more than I would James Madison's or Alexander Hamilton's or Patrick Henry's.  You know, my usual caveats on all that.

Still, I find it an interesting thing to consider and debate, particularly when the whole Dead Hand problem is raised by folks in the libertarian/anarchist/voluntaryist camp ("I never signed the social contract!").  Should we ever be bound by the past, and can we bind future generations to what we decide?

Short answer: of course, happens all the time whether we like it or not.  

Certainly we have, or at lease ought, to be cognizant of our place in the timestream.  Yet I cannot live completely thinking about the future--if I chop down these trees to build/heat my home, that necessarily changes the world for my kids, but I need to survive in the here and now.  And I cannot live without dealing with what came before--somebody planted birches and pines instead of maples on my land, so if I want syrup I have to buy from the farm down the road or chop down my trees and replant with maple.  Life's a drag that way.

Similarly, we have to deal with the political realities of the time and system we've been born into.  And yet  in our Republic we have ostensibly enjoy popular sovereignty and always have a chance to re-ratify our form of governance.  Each generation--if I might glibly oversimplify--makes a collective decision to accept the Constitution, precedent, statute, etc.  

We can take it all completely as is.  We can amend it.  We can call a convention to change it outright.   We can work within the system electorally to tweak the statutory regime.  We can interpret law through the modern lens of practical experience and understanding of the letter and spirit of our framing document.  We can rebel against the entire machine in myriad ways.

Looking at our founding generation, we see plenty of examples of the living overcoming that dead hand:

  • within the British parliamentary system, asserting their rights and resisting unjust laws until they were repealed (even without representation);
  • exercising the right to rebellion (most people recall that part);
  • forming not one, not two, but really three different frames of government (a de facto Congress, then Articles of Confederation, and finally the Constitution);
  • fixing structural issues through amendment (the Bill of Rights and a couple other amendments);
  • electorally overthrowing a regime within a generation (the Revolution of 1800);
  • evolving constitutional interpretation (like Madison and the Second Bank).

But if all those methods are unsatisfactory, one could go the route Jefferson mused about to Madison:

Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.--It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law has been expressly limited to 19 years only.

In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form.

The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.

Those objections to the right of repeal are not to be dismissed out of hand, but it seems that Jefferson then suggests there is no possibility ever of popular sovereignty or development of a Constitution.  I think that was disproved by Philadelphia in the first place, so I tend to agree Thomas Paine over his fanciful view of constitutionalism:

It requires but a very small glance of thought to perceive that although laws made in one generation often continue in force through succeeding generations, yet they continue to derive their force from the consent of the living. A law not repealed continues in force, not because it cannot be repealed, but because it is not repealed; and the non-repealing passes for consent.

And while Madison had a certain investment in such charters and the Framers' understanding, I think he was more on track than Jefferson on the longevity--and need for it--of constitutions.  If I might extrapolate a bit from something he wrote during the controversy over Washington's neutrality proclamation:

The attempt to shuffle off the Treaty altogether by quibbling on Vattel is equally contemptible for the meanness & folly of it. If a change of Govt is an absolution from public engagements, why not from those of a domestic as well as of a foreign nature; and what then becomes of public debts &c &c. In fact, the doctrine would perpetuate every existing Despotism, by involving in a reform of the Govt a destruction of the social pact, an annihilation of property, and a compleat establishment of the state of Nature. What most surprises me is, that such a proposition shd. have been discussed.

As an aside, I love the Vattel reference, for obvious reasons.  Anyway, the larger point is that if we can just discard agreements--whether they be treaties or constitutions--just because they were made in the past between different governments or people, really all liberty is destroyed.

And even if we are in a "state of Nature", you'd still have people around you, unless you can go to the far side of the Moon or some place where you have no impact on others and they have none on you.  Otherwise, everything will involve interaction at some point and naturally is going to be a collective issue, whether it be in a family, small hunter-gather unit, or larger society.

But yeah, one option is, certainly, for the current generation(s) to abolish our extant laws or entire system of government, either automagically every so often or by explicit act of repeal.  Still, do we need to reinvent the wheel?  In science and technology, we're always building on previous work and updating our understanding of things, so why not in society and government?  Heck, even our human brains are made up of multiple evolutionary layers--we didn't get rid of our most primitive components but added new features over time (which could, arguably, be the problem?).

If the anti-statists could marshal compelling arguments to sway enough people, we'd get rid of government and all live in Utopia.  But no matter what, society is a collective thing, and it's a darn shame that you're absolutely right but nobody else believes you.  Don't have to like it, but now you have to figure out what to do practically.  I think the constitution is extremely imperfect myself.  I also wish I could go to Jupiter.

So, it's true that no constitution or law will last forever.  They all rely on the living to continue, and they will be changed or repealed or what have you at some point.  I don't think Jefferson was really offering a prescription or a desire to prohibit a constitution's binding future generations, but rather a simple philosophical observation and prediction that at some point people will tired of brushing off the cobwebs and create something new and different when they find the old regime inappropriate.  The Dead Hand doesn't so much lock us into something as saving us a bit of work by giving us the starting point.

ntodd

November 13, 2013 in Constitution, Schmonstitution, Suffering Fools | Permalink

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The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.

I would point (admittedly vaguely and non-specifically) to the Texas Constitution, a product of "populism" in the aftermath of the Civil War, and a hatred of both bankers and railroads (the two economic powers of late 19th century Texas).

We elect everybody down here, thanks to the Constitution, from dogcatcher to governor. We elect so many people nobody can really keep up with who we elect, or what they do. Land Commissioner? It's a Constitutional office just like the Lt. Gov. and the Attorney General. But our AG doesn't prosecute criminal cases, and we elect a Supreme Court AND a Court of Criminal Appeals (one handles only civil, one only criminal, cases). We elect county judges, but also county judges at law (one is a 'real' judge, the other isn't). And JP's and District Judges and appellate judges; on and on and on.

Every two years we have to amend the Constitution so we can get anything done. No one is quite sure why, but we've always done it that way, so off we go to the polls. Did I mention we have about the lowest voter turnout in the country? Now you know why. And the original populist vision that prompted all this Jeffersonian democracy is the reason we almost have no democracy at all: it's too damned much.

There was an effort to revise the Constitution a few decades ago. It failed because the business interests it was supposed to corral, completely control the system now. As one prominent business man put it at the time, regarding the failure to get enough interest to change things: "If it ain't broke, don't fix it!"

For business, things couldn't be better; for the people? Well, Jefferson would wonder why we haven't risen up mickle in our wrath and insisted on changing things. He'd almost certainly not consider that most of his ideas about polity were dreadfully wrong.

Now, about that stupid "pursuit of happiness" he saddled us with.....

Posted by: Rmj | Nov 13, 2013 3:51:25 PM

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