Thursday, April 22, 2010

Can a libertarian love "commandments"?

Robert A. Levy, head of the Cato Institute, is of course a libertarian, and so committed to "a government of limited power and maximum freedom for the individual."  He is also, however, a Constitutional originalist, which means that he accords all-but-divine authority on the Constitution's drafters. He believes that the intent of men dead for 200 years, filtered through the imaginations and propensities of living judges serenely confident in their ability to divine that intent, should determine the way we define our liberties today. We are free to do anything except define our own freedom.

That strangely authoritarian approach to freedom is in evidence in Levy's choice of words in a letter published in today's Times, furiously countering "Geoffrey R. Stone's panegyric to liberal Supreme Court justices." My emphasis below:
Thanks to so-called empathetic judges who have ignored the commandments of the Constitution, Congress can regulate anything and everything, redistribute money from anyone to anyone else, delegate its lawmaking authority to unaccountable and unelected bureaucrats, erase private contracts between consenting adults, extend less protection to political speech than to flag burning, seize private property for transfer to politically connected developers, punish blameless but disfavored racial majorities and impose anticompetitive restrictions on would-be entrepreneurs seeking only to earn an honest living.
Are the provisions of the Constitution commandments? In a sense. The OED's first definition of commandment is "an authoritative order or injunction; a precept given by authority."  That is true of the laws and founding documents of a representative democracy. But the term gives implicit short shrift to the converse; that the "authority" is "given" (or rather, lent) by the people (presumably including living ones). The OED's second definition is "a divine command" -- specifically (2b), the Ten Commandments.  Subdefinition (2d) adds, "also used allusively of other sets of rules, implying that they take the place of the Decalogue."  That, I would argue, is the use at play here. (Though others might argue: is that Levy's "original intent?"  And if that question is argued, should Levy be the final arbiter of that question?)

Contrast the OED's definition of "constitution" in the political sense: "The system or body of fundamental principles according to which a nation, state or body politic is constituted and governed.."  "Governed" by "principles" -- that seems more in keeping with American (and modern democratic) understanding of a polity's relationship to its constitution.

A written Constitution conceived as the sole guarantor of liberty becomes a fetish and therefore a fetter. The fetishization can be seen in Levy's simultaneous celebration and lament, in the introduction to his book The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (Cato, reprint 2010), over the extent to which the Constitution has governed/not governed American development:

Since the Bill of Rights was adopted in 1791, the Constitution has been amended only seventeen times. Yet the framers could never have imagined what our twenty-first-century world would resemble. How, then, did they manage to devise a document that would be changed on so few occasions over such a dynamic and tumultuous two centuries? Three explanations come to mind--two good and one bad.

The first good explanation for the stability of the Constitution is that it is an incredibly well crafted document comprising broad principles written by brilliant legal minds who had a vision of  liberty that is every bit as relevant today as it was in 1791.  The second good explanation is that the framers established an amendment process in Article V of the Constitution that was designed to discourage frequent revisions. Essentially, amendments are proposed by two-thirds of both the House and the Senate, after which they have to be ratified by three-fourths of the states.  Not surprisingly, those demanding requirements have not been satisfied very often. The result: a stable constitutional framework that has endured hot and cold wars, recessions and depressions, and scandals the likes of which have destroyed many foreign governments.

The third reason we have not seen very many amendments is more disturbing. Basically, the Supreme Court has imposed through the back door what the Congress and the states could not accomplish through the amendment process. By misinterpreting cases that have raised key constitutional questions, the Court has expanded government and curbed individual rights in a manner never intended by the framers, with profound implications for all Americans (3).

Something is backwards here.  Granted, judicial interpretation has been a "back door" for Constitutional amendment -- though that is inevitable if you grant the legitimacy of judicial review. But you can't lament the opening of a back door while celebrating the barring of the front door -- through Article V, which makes the Constitution so difficult to amend. That is a bug, not a feature.  No free society can bind itself over the course of hundreds of years to abide by the intent of its founders (which was no more uniform, discernible and immutable than the "intent" of current lawmakers taken as a body) -- and remain free. 

Because of the difficulty of amendment, Our Undemocratic Constitution has saddled us with an increasingly dysfunctional electoral machinery: a Senate, the nonrepresentational nature of which has grown more extreme as the population has grown and fanned out across the continent and beyond; a House disfigured by gerrymandering, enabled by a Constitutionally mandated redistricting process; an executive with ambiguously defined powers; a presidential electoral process that bid fair in the last decade to truly destroy our liberties; and yes, unelected judges with life tenure who exercise excessive control over laws passed by Congress -- a power that "conservative" judges exercise with full as much impunity as "liberal" judges ever did, empathy or the lack thereof notwithstanding.

UPDATE 4/24/10: It's interesting that Levy fetishizes the Constitution but chafes at the effects of lifetime tenure on the Federal judiciary, a key factor in the courts' ability to effect sweeping social change.  In an op-ed in today's Times, Linda Greenhouse, who had a long tenure as the Times' Supreme Court reporter, argues that lifetime tenure -- uniuqe to the U.S. --  makes our fiercely politicized confirmation battles all but inevitable.


  1. Your argument relies on your notion that freedom has many definitions... but if you open any dictionary out there you'll see something like this: "the condition of being free; the power to act or speak or think without externally imposed restraints" -- the founders' definition of it.

  2. We are free to accept the Constitution, or not; the same as voluntarily binding ourselves in contracts. Many liberarians simply ignore laws or rules they don't choose to follow. Incidentally, you might be interested in the article, "Libertarian Pledge of Nonviolence."