Is the Constitution True? An Addendum


In “Is the Constitution True?” I argued that

all Americans living at th[e] time [of the Constitution’s ratification] had the right to rely on the extant meaning of the Constitution. That meaning was therefore binding throughout their lifetimes, not only on them but, of necessity, on every American who was born during those lifetimes. Accordingly, the same meaning must have been binding on every American subsequently born, up to the present. And it must be binding on every American yet to be born.

Otherwise, the Constitution’s meaning — as law — changes constantly. But the meaning of law is not supposed to change constantly, without deliberate, overt amendment through prescribed political processes. If it is allowed to change constantly, without due process, it is whim, not law.

What about subsequent de facto or de jure interpretations of the Constitution that had the effect of changing the Constitution’s meaning? Didn’t Americans then have to adopt those interpretations? And didn’t the newly adopted interpretations then become binding on Americans for as long as they remained in effect? I answered those questions in the next paragraph:

A counter-argument is that law is whatever it is at a given time, as revealed in its current interpretation and enforcement (or lack thereof).  That is a “realistic” description of law, but not one that lends itself to the preservation of trust in written law as a set of  rules under which a sizable, disparate populace may coexist in peaceful cooperation. In fact, that kind of “realism” has fostered today’s intrusive, “living,” Constitution….

I am arguing, in effect, for what Randy Barnett calls the “real Constitution“:

Under our system, the Supreme Court has the last word on whether a statute challenged as unconstitutionality will be upheld or nullified. But it does not have the power to change the written Constitution, which always remains there to be revived when there is a political and judicial will to do so. For example, after the Supreme Court gutted the Fourteenth Amendment during Reconstruction, it remained a part of the written Constitution for a future more enlightened Supreme Court to put to good use. By the same token, the current Supreme Court can still make serious mistakes about the Constitution. Because it is in writing there is an external “there” there by which to assess its opinions.

But there is one final twist: if the Supreme Court adopts a “presumption of constitutionality” by which it defers to the Congress’s judgment of the constitutionality of its actions–as it has and as “judicial conservatives” urge–and the Congress adopts [the] view that “unconstitutionality” means whatever the Supreme Court says, then NO ONE EVER evaluates whether a act of Congress is or is not authorized by the Constitution. A pretty neat trick–and a pretty accurate description of today’s constitutional *law.*

Today’s constitutional “law” is such that we Americans are captives in our own land. What do I mean by that?

Voice is now so circumscribed by “settled law” that there is a null possibility of restoring Lochner and its ilk. Exit is now mainly an option for the extremely wealthy among us. (More power to them.) For the rest of us, there is no realistic escape from illegitimate government-made law, given that the rest of the world (with a few distant exceptions) is similarly corrupt.

The “real Constitution” — which libertarian purists reject because they weren’t among its ratifiers — is far more libertarian (as amended) than the one that has superseded it. Libertarians who want something like liberty — as opposed to wishing for an unattainable, anarchistic, libertopia — should be working toward the restoration of the “real Constitution,” not arguing that there is no such thing.

Related posts:
Substantive Due Process, Liberty of Contract, and the States’ Police Power
A New, New Constitution
Secession Redux
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
Is the Constitution True?