Saturday, August 28, 2010

On the Constitution

I've been trying to find the time to post some thoughts about Perry v. Schwarzenegger (the Prop. 8 case), but I'm not quite there yet. In the meantime, though, I had a thought today about the constitution and the Founding Fathers.

There is a fashion today current among certain people to revere the opinions of the Founding Fathers that bothers me. It bothers me for two reasons. One is that these people rarely seem to revere the opinions of the Founding Fathers, but rather the opinions of some combination of Madison, Jefferson, Adams, and Franklin. This confuses me. Do we consider Madison to be wiser than Morris? Baldwin? Pinckney? On what basis do we prefer the opinions of Jefferson to those of Hamilton? The whole thing smacks of shoddy thinking.

The second is that I do not see why we should revere the opinions of the Founding Fathers, jointly or severally, at all. Of course, one may choose one's personal heroes as one will, but that is a different matter. The fact that I revere the fictional opinion of Honor Harrington does not mean I am saddened when I perceive that my nation does not follow suit. Yet there are those of my countrymen who revere the opinion of (for instance) Madison, who seem saddened when they perceive that our nation does not follow suit. This seems incredible to me. How can this be?

I wonder if such people can see no reason to revere the Constitution without elevating the opinions of the authors of that document above those of the common man. Perhaps they ask themselves, "Why should we care a whit what this document says? Is it not two centuries old? Did we sign it? Did our ancestors sign it?"

In law, this is known as the Dead Hand Problem - on what basis can a constitution bind subsequent generations, who after all did not sign it and had no opportunity to debate it when it was being drafted? Perhaps these countrymen of mine can think of no answer to the Dead Hand Problem other than to suppose that the authors of the constitution must have been uncommonly wise, and their opinions uncommonly worthy of consideration.

That is not my opinion. I do not even know how to form an opinion on the wisdom of the Founders individually; I do not think we have sufficient evidence for far too many of them. That strikes me as a thoroughly inadequate answer to the Dead Hand Problem. I will tell you my answer, though - it is that neither I, nor any other American, has emigrated.

Plato articulates my answer in the Crito. In it, Socrates is in jail, awaiting the appointed hour of his execution. His wealthy students and foreign admirers have pooled their considerable resources and are prepared to break him out of jail, spirit him away to a foreign nation, and conduct a propaganda campaign in his native Athens to rehabilitate his image and convince those who doubt that his conviction was unjust to begin with. Everything is prepared. But what, Socrates asks, would the laws (nomoi, constitution) of Athens say to such a scheme?

He imagines their answer would go something like this:

“Observe then, Socrates,” perhaps the laws would say, “that if what we say is true, what you are now undertaking to do to us is not right. For we brought you into the world, nurtured you, and gave a share of all the good things we could to you and all the citizens. Yet we proclaim, by having offered the opportunity to any of the Athenians who wishes to avail himself of it, that anyone who is not pleased with us when he has become a man and has seen the administration of the city and us, the laws, may take his goods and go away wherever he likes. And none of us stands in the way or forbids any of you to take his goods and go away wherever he pleases, if we and the state do not please him, whether it be to an Athenian colony or to a foreign country where he will live as an alien. But we say that whoever of you stays here, seeing how we administer justice and how we govern the state in other respects, has thereby entered into an agreement with us to do what we command; and we say that he who does not obey does threefold wrong, because he disobeys us who are his parents, because he disobeys us who nurtured him, and because after agreeing to obey us he neither obeys us nor convinces us that we are wrong, though we give him the opportunity and do not roughly order him to do what we command, but when we allow him a choice of two things, either to convince us of error or to do our bidding, he does neither of these things.”

That's my answer to the Dead Hand Problem. Forget the Founding Fathers.


Theo said...

I think that there are a number of people _dissatisfied_ with the Constitution, or something else about the US, who nevertheless do not emigrate, and for good reasons. For example, moving has many costs: financial, but also emotional, social, etc. And I may also perceive benefits to not moving that outweigh moving, but simultaneously think that even better would be to change something about where I'm at. So I'd say that "I have not emigrated" is not a good reason for "I support the Constitution." Then again, I personally do not revere many parts of the Constitution, so I personally am not looking for such a reason.

Natalie said...

Let's be clear about the meaning of "support." In the context of this post, by "support," I mean "submit to the laws founded upon." Within that meaning, one can "support" a constitution even while dissatisfied with its content.

That said, it is true that there are costs to emigrating, but there are also costs to staying. If a person does not emigrate, what are we to conclude but that a person considers the benefits of submitting to the federal and relevant state constitutions to outweigh the costs imposed thereby?

Malgayne said...

Wouldn't it then make sense for those people to be saddened by the fact that the state of the country is not what they would want it to be?

Natalie said...

It might, yes. I can understand being sad that your country is not what you want it to be. I can even understand not doing anything about it - perhaps the costs of complying with the relevant scheme to change the state of your country outweigh the benefits you expect to gain by changing it. What I don't really understand wishing that your country was as the Founding Fathers intended - I don't even know what it means to imagine the "intent" of the "Founding Fathers."

Anonymous said...

I have never been overly impressed with the so called logic of Socrates and you happen to pick up on one of the parts that I have always found most distasteful.

I actually agree with you to "forget the founding fathers" but not for the reasons why.

The difficulty is that the "nurturing" process that the state undertakes is far from a neutral process to the individual. Socrates argument presupposes that (a) the nurturing process is inherently beneficial to the individual and (b) that there must be somewhere an individual "fits". At it's root the Socratic claim is "Stay here and let us beat you or go elsewhere and let them beat you."

But of course why should the good citizen be beaten at all? I personally don't believe I have *any* social duty whatsoever. It is mere random fate that I was born in America and it was mere random fate that I was "nurtured" here. To claim that *I* have some type of social duty strike me as the height of egotistical arrogance. If I behave like the ass that stubbornly refuses to move, well the good citizens of America should have thought of that before they used a stick to "nurture" me.

So yes forget the founding fathers but forget them because there is no social duty whatsoever.

Natalie said...

Hi Anonymous,

I disagree with that articulation of Plato's argument. Neither beating nor nurturing really enter into it. I think that the root of the argument is fair trade.

It was indeed random fate that you were born in America, and random fate that you remained until adulthood, and you had (or at least Plato assumes you had) no capacity until you were an adult to go elsewhere. But having become an adult, you continue to avail yourself of the products of your state and federal constitutions. You continue to live in a federal representative democracy, you continue to enjoy freedom from an established religion, you continue to live in an organized county or incorporated municipality, you continue to have the protection of police and emergency services, you continue to make contracts under American law, you continue to exercise a variety of liberties, and so forth. All of those things - the very existence of the county or city in which you live - stem from your constitutions. You cannot help but consume their products every moment you reside in America.

Plato's argument is not that the state has given you benefits and therefore you owe it to the state to submit to its authority. The argument is that the state has offered you a package of life in exchange for working within the system, and by accepting the package it is only just that you also work within the system.

According to this argument, an adult American citizen who sends his children to publicly funded schools on publicly funded roads without paying his taxes is essentially a thief and a cheat - he is availing himself of the commons without keeping up that share of the commons assigned to him when the commons were made common in the first place. As a citizen, he was offered use of the commons in exchange for accepting a share of the upkeep, and as an adult, he could have opted out - but he did not opt out, and so it is incumbent upon him to keep up his share.

I think most people share the intuition that accepting public services without contributing to their upkeep in the offered manner is wrong. But the principle extends to realms other than public services. By Plato's argument, an adult American citizen who avails himself of his First Amendment right to free speech while refusing to pay his taxes is also in the wrong - he is cherry picking which parts of the constitution he wishes to comply with. He is like a child who is offered a lollipop in exchange for cleaning his room and, taking the lollipop but refusing to clean his room, justifies himself by saying, "Well, you offered me a lollipop!"

Anonymous said...

I don't drop by here often so I that explains the delay in my reply.

There is no such thing as a "fair trade." As US Supreme Court Justice Oliver Wendell Holmes, Jr stated, "Man is born under a set of social conditions and if you change those conditions you inevitably alter his whole way of life."

Inertia is a powerful force. A person's mind and will is as much subject to inertia as any physical object. Man's heart and soul is not eternally plastic.

The "offer" that society is handing me is not an offer between equals. It's an offer that 18 years of social conditioning primed me to accept. It's an offer that I can't refuse. Can't as in "unable;" beyond my power.

In order for there to be a valid contract in the law that contract must be freely chosen. But no existing social contract is ever freely chosen by the citizen *born* into it and educated by it. The process of education and acculturation in the family and school is akin to the process that a drug pusher uses to hook a client. It's a weird fantasy to think that most people magically go "cold turkey" when they become adults.

Of course people who reject that "offer" are labeled thieves and cheats. Name-calling is part of the social indoctrination process. The reality that such name-calling exists at all goes to the heart of the fact that human growth and education is not a process of increasing liberation but one of increasing imprisonment.

Likewise, the argument that if a newly mature citizen don't like the "offer" they can go somewhere else is equally bogus. Even if that was true in the wide open wilderness that existed in Plato's day there is no such option now. Where is a man supposed to go, flap his arms to the moon? As Lincoln wisely noted about the slaves more than one hundred years ago, where were they supposed to go? Not Africa. Does anyone really think Liberia was a successful social experiment. Maybe we could have put them in Australia but sadly that was already taken by the English who had already dumped their undesirables.

The point that I'm driving at is not only is Plato's argument philosophically unsound it's also been proven time and time again to be *historically* false. People don't enter into social contracts in a big pow-wow among heap big men. As the Native Americans and Aborigines found out they normally enter a social contract at the barrel of a gun. With force. And there is nothing ever fair about force. Force is no less powerful because it comes from a middle school teacher's paddle than it does from a troop of cavalry.

Spouting nonsense about "fair trade" is nice for people who don't have to deal with the realities of life. But no one who looks at life with an honest eye thinks there is anything fair about it.

Natalie said...

Plato wasn't talking about going into the wilderness, he was talking about living in a foreign state, where one would have none of the rights of the citizen, and he was talking about a situation where it was considerably more difficult to be born a citizen that it is in the United States. The options a person has now are, if anything, better than the options a person had in Plato's day.

You're quite right that it's difficult to leave one's birth country. But it's merely difficult - not impossible. The existence of emigration (not to mention the existence of all modern American states) ought to demonstrate that point. To say that one can flout the laws of one's birth country simply because one finds it too difficult to leave or because one doesn't like any of the 260-odd other choices available to one is an argument I find difficult to credit. Even Diogenes argued that he was entitled to flout the laws of his birth country because he added unique value.