Part of the "Critiques of Libertarianism" site.
http://world.std.com/~mhuben/libindex.html
Last updated 10/25/07.
[This is a first public presentation of my own ideas. Have mercy on me.]
Often I'm challenged (explicitly or implicitly) by libertarians and their right wing ilk to come up with a method for interpreting the Constitution that is better than their favorite method-of-the-day. It's taken me a number of years to come up with a basic idea inspired by my own musings, the MIT X Windows Project, Adam Smith, and (it should go without saying) the Federalist Papers. I'd love to hear some comments on this idea and some pointers to authors with similar ideas.
There has always been argument over who should and how to interpret the constitution. Ideological answers such as "original intent" often justify themselves with this process:
And it's not as if these haven't been refuted. For example, at my own web site I have Original Intent And The Constitution, by James Boyle.
The big, basic problem is determining the meaning of a group statement. Can it be accurate? After all, only part of the group may agree on the statement. Or the statement might be ambiguous and interpreted differently by different members. Or some members might be dishonest in the statement. Still worse, over time the members might change their opinion, but the statement remains fossilized in print.
I think the Federalists were well aware of these problems, and adopted a strategy beautifully summed up with the catch phrase "mechanism, not policy" by the MIT X Windows Project. Perhaps this seems obvious: the Constitution and Bill of Rights establish the mechanism of our system of governance. The key distinction that I draw is that I don't think they establish policies, including specifying contents of rights. I think that the rights specified in the Constitution and Bill of Rights are there for purposes of mechanism, not to directly protect individual rights.
The MIT X Windows Project was established at a time when there were competing user interface standards for computers: OpenLook and Motif. The idea was to create a layer underneath user interfaces that did all the hard work of drawing and reacting to user input in a very concise and general way that could easily be used to create policies: OpenLook, Motif, or new styles of interfaces. (These were called policies because each had different styles of menus and other components.) This would create user freedom by allowing them to easily experiment and make applications portable to computers not supported by vendors. And that in turn would support customization and evolution of user interfaces in general, with X Windows as a free, underlying layer.
I view the US government as a similar project, the most complex social cybernetic mechanism of its era. It too was born of competing ideas for government that had to be supported: the governments of the states. I think it was designed to be an underlying layer of support for the states, providing services (such as defense) that would be overly costly or conflicting if managed by the states. Nothing novel here.
The interesting thing, though, is the cybernetic nature of the Constitution as described in The Federalist Papers. The term "checks and balances" focuses attention on only one aspect of the cybernetic nature of our government: the problem of maintaining control. This overlooks the major intent of government, which is to serve our interests, just as any other cybernetic mechanism would.
Prior to the Constitution, one other major social cybernetic system was well described: markets. Legal institutions of property, torts, and freedom to compete made a powerful system that channeled selfish, competitive urges to productive use. This regulated behavior has been dubbed "the invisible hand".
The US Constitution is the Second Invisible Hand. (Hands usually come in pairs.) Folks who characterize government as a visible hand are looking at the products of government as they affect the market, but they are ignoring the whole idea of Adam Smith's metaphor. "By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it." Competing powers (and parties) in government, following their own selfish interests, benefit us all through their competition to serve our interests. The alternative is government being run in service of private, selfish interests such as those of kings, dictators, tyrants, the wealthy, and more modern single parties. US government is much more akin to markets in this respect than is commonly recognized. Small wonder, as both were enlightenment era projects.
Recognizing this purposeful design of the Constitution and Bill of Rights gives an unusual but rather clear functional original intent of Constitutional rights. Now, by functional original intent I do not mean that we should exclude other original intent, later added intent, extension, or reinterpretation. Those others are arguable. However, recognition of functional original intent places a burden of proof on those arguing other (more extensive) original intentions. Interestingly, the emphasis on functional original intent also explains some other surprising omissions in the constitution. The two that immediately come to mind are that it entirely lacks philosophical rhetorical flourishes (indeed, it is entirely positivist, speaking only of human institutions: where it mentions rights, they are not sourced as natural rights or God-given rights) and that it nowhere mentions God.
Let's examine some Constitutional rights in light of their cybernetic, functional intentions. The two major threats envisioned by the authors were that the federal government might become tyrannical to all the states in and of itself, and that one or a few of the larger states would come to dominate the federal government and thus tyrannize the remaining states. Long history of oppression by the British crown, as detailed by the Declaration of Independence and numerous other documents, gave the authors a keen understanding of how governments may be oppressed by other governments. Almost every restriction of powers in the Constitution and the Bill of Rights can be recognized as a cybernetic limit switch designed to restrain actions of the federal government within bounds. There are two key functions for a limit switch. First, to prevent destruction of the cybernetic system by positive feedback driving the system out of bounds. Second, to trigger negative feedback to keep the system within bounds.
What is new here? Not much, except that the restrictions on powers originally were for cybernetic reasons limited to protecting state and federal politicians. Not for broader reasons having to do with individual liberties: those are generally considered matters of later incorporation. State governments and factions in federal government can retain power only when their politicians are secure from the federal government. The functional original intent of Constitutional rights was to protect political activity at state and federal levels by protecting politicians from the federal government. That's why habeas corpus is mixed in with a bunch of other protections for the states. That's why no religious test is permitted for office: how simple to exclude various states' politicians with a religious test. The authors and signatories of the Constitution and Bill of Rights were all state politicians, keenly aware of the diverse methods the King had used to oppress them.
Note that those two protections, habeas corpus and from religious tests, are extremely limited. It would be possible to grant extensive protections to politicians, as has been done in other jurisdictions, but the founders probably thought it would lead to aristocratic abuse. The Constitution and Bill of Rights are extremely minimalist in the powers and protections they grant. That fits well with the concision implied by a mechanism, not policy hypothesis.
The first amendment is an obvious example of how my ideas can be applied. Many states could have been coerced with laws opposing their leadership's religions. And the same people who established freedom of speech and the press also intended laws on fraud, libel, slander, copyright, etc. for non-politicians. I'm ignorant of the historical origins of exemptions of politics from these laws, but those exemptions are consistent with this functional original intent.
The second amendment requires an understanding that the King had attempted to keep some colonial governments toothless by disallowing their armed forces. This left them open to insurrection and outside attack if the King wanted them to suffer for their opposition. Thus, the state right to militias. (Note to second amendment fundamentalists: RKBA as an individual right is not excluded by this argument. However, it requires further argument that doesn't interest me here.)
The third amendment is an obvious protection to politicians: what better way to ruin and control opposition than by quartering bullying, prying, thieving, hungry soldiers in their homes and workplaces? Likewise the fourth through eighth: all are protections from basic ways of ruining political enemies with the instruments of government. Harass your opponents and learn their legitimate plans with searches and interrogations. Arbitrarily prosecute and punish opponents repeatedly. Use accusations, indefinite imprisonment, secret processes, and kangaroo courts to eliminate your opposition. Use corrupt judges to impoverish your opponents with lawsuits. Use court procedure to punish your enemies.
Today, we take the generality of these amendments for granted, but they were not originally general. Most of us are ignorant of the history of incorporation of Constitutional rights against the states and the extension of rights to non-landowners, non-whites, non-males, indigents, etc. (See Akhil Amar's "The Bill Of Rights".) They used to be much more minimal.
But there's no mention in the Constitution or Bill of Rights of how general or specific these rights are. While it is true that there was extensive discussion of the meaning of those rights when they were proposed, there patently was disagreement about meanings among those who approved the Constitution and the Bill of Rights. I suggest that the purpose behind the framing of these rights in the two documents was mechanism, and that mechanism was a core meaning that all could relate to and agree upon. If they also dreamt that the meaning could be interpreted in many and various other ways that they also preferred, that would explain how so many voted for such vague promises of rights. If we look their contemporary, Adam Smith, for understanding of human nature, he'd be the first to suspect that they were enacting minimal but specific rights for their own class (the politically active wealthy) rather than more generally.
So what would this functional original intent mean for constitutional interpretation?
First, it would mean that nobody today would be satisfied with only this interpretation, and much of this functional original intent has been extended by later amendments (see Amar once again.)
Second, it illustrates what was considered essential to the cybernetic regulation of the government mechanism. This allows a great deal of leeway in interpretation of essential rights: who should have them for what purpose. If commercial speech (as opposed to political speech) is subject to regulation, is that dangerous?
Third, it shows that most claims of meaning in the constitution are imaginary. We knew that beforehand, simply because there are so many conflicting and competing claims. We see it in almost every dissent in a supreme court decision. Nothing new here, except that now we have an explanation of why the language of the Constitution and Bill of Rights is so vague. Glittering generalities can foster community around important essentials while folks vehemently disagree on specific interpretations.
That last point leads to a theory of legislation: the greater the unanimity required to enact legislation, the more important, functional, vague, and unspecified the law. The constitutional and amendment processes require much more unanimity than most laws, and thus are almost Delphic in their terseness and ambiguity. They are also generally extremely focused on a functional problem of the governmental mechanism.
Fourth, and finally, beyond accurate interpretation of mechanism, interpretation of the Constitution and Bill of Rights should be recognized to be policy. Not correct, not historical, but instead a reflection of current political will. There are plenty of indications that various authors of the two documents intended the US government to be a means of reflecting the political will of the people (in a restricted sense) as policy. IMHO, every institution of our government reflects political will, and the interpretation of the Constitution and amendments should also. Political will is not unitary: it is a result of a complex system of competing branches of government, factions, and other interests. Each of the three branches will interpret the Constitution according to their own interests in the execution of their powers, subject only to checks and balances based on interpretations of the other branches.
Reflection of political will is rather vague, but in general the system works to minimize dissatisfaction. The more dissatisfaction, the more likely something will be done. Even dissatisfaction among minorities can be addressed as they can be swing votes on issues where they're neutral. This is one factor helping to explain the extension of constitutional rights beyond their original meanings to include almost everyone. Political will was behind various constitutional amendments extending rights, as well as changes in judicial interpretation that likewise extended rights. It doesn't much matter which method is used, as long as the system is functioning well to reflect political will as was originally intended. How exactly should political will be followed, and in how timely a fashion? That too can be policy (the Voting Rights Act, for example.)
If rights are being extended, it is because voters are becoming more demanding consumers and policy is adapting to their demands. Just as the first invisible hand leads to greater consumer satisfaction with commercial goods, so the second invisible hand is leading to greater satisfaction with government productions such as rights, reductions in government corruption, and a host of other government services. It's not because these rights were inherent in the original text. The original text merely described the mechanism to follow political will as it changed.
In conclusion, my key ideas are:
Have I come up with a different, more valid method of interpretation than proponents of original meaning and original intent? I like to think so for several reasons.
First, almost everybody signed on to the Constitution because the Federalist papers clearly explained the expected workings of the cybernetic mechanism, including the protections against abuses (limit switches). They expected to become part of the workings of this social mechanism. Not because of promises of rights. This avoids the sampling and caricature problems.
Second, no modern ideology is required to explain the difference between mechanism and policy: I think I recall that distinction was repeatedly drawn in the Federalist papers, though using other terms.
And finally, no mechanism requires a single person to understand its full functionality nor its intended behavior. The mechanism is what it does. A mechanism can have innumerable meanings to many people, irrespective of what its creators intended. But the creators did intend the mechanism to work cybernetically. Is that anacronistic because the term cybernetics was coined in the 1950's? No: principles of feedback were discussed by innumerable scientists and philosophers (such as Smith) in that era, just without that convenient term.
These ideas are in continual development, and I'd welcome comments. I've come to these conclusions through a process of skeptical rejection of numerous arguments that I've heard over the years. What's left is my own idea of a remaining plausible possibility.
Mike Huben
Copyright 2007 by Mike Huben ( mhuben@world.std.com ).
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