Tuesday, February 26, 2013

A Disquisition No One Should Need

More and more of those around me have been telling me how cranky I sound lately. I'm sure they're correct, though "cranky" is part of a curmudgeon's standard persona. But the most important aspect of their observations is the reason for what they perceive.

There are basic facts about the world that must be accepted as they are. They don't need to be explained. They certainly don't need to be defended. They are elements of objective reality: the stuff that "when you stop believing in it, doesn't go away."

Yet I find myself having to explain, even defend, such basic facts ever more often as time passes. Worse yet, quite a number of intelligent persons claim to find the explanations incomprehensible. Worst of all, they persist in denying the realities at issue even as they observe them in opeation!

Maybe it's something in the water.

Today's incitement to biliousness arises from this magnificently compact and lucid statement by our own, deservedly beloved InstaPundit:

Russ Roberts, Interviewer: We had a recent guest on the program, Louis Michael Seidman, and he suggested that the Constitution’s out of date. It makes us beholden to a group of dead people who lived over two hundred years ago, and we should just ignore it, unless something in it makes sense. He happens to be a defender of the Second Amendment – he wouldn’t get rid of that. Or the First Amendment; he likes that one, too. But, basically [he thinks] we should keep good laws and get rid of bad ones; [keep] good practices, and get rid of bad ones. So you just avoid the Constitutional Convention all together. You just stop using the Constitution! What do you think of his argument?

Glenn Reynolds, InstaPundit: I call this the Raj Koothrappali approach to Constitutional Law. I don’t know if you watch Big Bang Theory, but Raj is Indian of course, and he’s lecturing his sister from India on Hindu rules about modesty and sexual proprietary, and she just looks at him and says, “You’re talking to me about this, as you’re eating a cheeseburger!” He just looks at her and says, “Some of it makes sense; some of it’s crazy – what ta do?!” And that’s basically the Seidman approach to the Constitution, right? The parts he likes make sense, and the others are crazy – what ta do?

Here’s the problem with public officials — because that’s really his [Seidman’s] audience — deciding to ignore the Constitution: If you’re the president, if you’re a member of Congress, if you are a TSA agent, the only reason why somebody should listen to what you say, instead of horsewhipping you out of town for your impertinence, is because you exercise power via the Constitution. If the Constitution doesn’t count, you don’t have any legitimate power. You’re a thief, a brigand, an officious busybody, somebody who should be tarred and feathered and run out of town on a rail for trying to exercise power you don’t possess.

So if we’re going to start ignoring the Constitution, I’m fine with that. The first part I’m going to start ignoring is the part that says, I have to do whatever they say.

Roberts: But his argument is that we already ignore the Constitution; it’s not really much of a binding document.

Reynolds: Oh, well, then I’m free to do whatever I want! And actually, that is a damning admission, because what that really says is: If you believe Seidman’s argument; if you believe that we already ignore the Constitution anyway, then in fact, the government rules by sheer naked force, and nothing else. And if that’s what you believe, then all of this talk of revolution suddenly doesn’t seem so crazy, it seems almost mandatory.

Roberts: Well, he would say – well, I won’t speak for him, but some would say that, well, there’s a social contract, we’ve all agreed to kind of play by these rules…

Reynolds: Oh really?!

Roberts: …of electing officials, and…

Reynolds: Well, the rules I agreed to electing these officials are the Constitution. I thought we were going to ignore that. That’s my social contract.

Gentle Readers, it cannot be put more clearly, nor more succinctly, than that. But it should not need to be said -- not because the Constitution is some form of holy scripture, handed down by God along with the Ten Commandments, but because in the fixed and everlasting nature of things, the sole alternative to having a Supreme Law is no law at all.

Here's the logic:

  1. Law must apply either uniformly or differentially.
  2. But law that applies differently to different persons is not law; it's an exercise of privilege derived from status.
  3. Therefore, legitimate law must apply uniformly to all persons. Americans call this the Rule of Law.
  4. But some attempts to make law will be illegitimate, because the proposed law would be inherently differential: i.e., it would discriminate among persons according to their status rather than their conduct.
  5. Therefore, there must be a set of standards that codify the requirements for legitimate law. Americans call such a set of standards a constitution. It is inherently superior to all lesser legal pronouncements: the Supreme Law to which all other law must conform.

Q. E. BLEEP!ing D. No one who's passed through sixth grade without being incarcerated should have any trouble following that. All the same:

  • There are persons who claim it "makes no sense" to have a fixed Supreme Law;
  • There are persons who claim "changing times" make a Supreme Law impossible;
  • And there are persons who find the constraints of a Supreme Law too chafing to bear.

Most of the above enumerated persons consider themselves superior to the Founding Fathers, both in intellect and in moral standing. Quite frankly, they should hope never to meet me; the encounter would be massively unpleasant for them.

I've written before about the overwhelming importance of constitutionalism as a principle. (See also this continuation of the thesis.) The readers of Liberty's Torch being a rather bright bunch, it's likely that you had no more trouble with the logic then than you've had with it today. But I keep having to repeat myself, when it shouldn't be necessary for me to make the argument at all. No more should Professor Reynolds have had to make it...though I'm glad he did, and hope that his statement travels far and wide.

Really, it's a kindergarten conception. When we're not talking about law and politics, we call it fairness. Fairness as private persons use the term has two components:

  • Evenhandedness;
  • Informed consent.

If fairness absent politics is right and necessary for harmony among men, then how much more necessary is it when the subject is law and government: the pre-indemnified use of lethal force!

Americans want to know why their freedoms are disappearing one by one...while they dismiss all calls to abide by Constitutional constraints. They agitate for special privileges, exemptions, and "protections" for this group or that, for this industry or that...while they rail against others who prefer that the privileges run in a different direction. They complain about rising taxes, rising prices, rising debt...while they demand ever greater subsidies and subventions, to be paid for by "that guy behind the tree."

Perhaps it's all one error, for in reality, there are no "freedoms." Either there is freedom -- the absence of legitimized coercion from all decisions and actions that don't involve force or fraud -- or there is the decree of the strongest power in the neighborhood. There is no third possibility. That's reality: the reality of government.

And thus be it ever, where men, free or otherwise, shall stand.


  1. Something here about the bad faith intent of such as Seidman being functionally equivalent to treason, but the clarity of phrasing isn't coming.


  2. "There are persons who claim it 'makes no sense' to have a fixed Supreme Law; There are persons who claim 'changing times' make a Supreme Law impossible; And there are persons who find the constraints of a Supreme Law too chafing to bear."

    To the former two groups, I would point out that these objections were anticipated, and the codifying document of America's supreme law contains within itself precise instructions for not one but _two_ methods of lawfully modifying that law by amendment. If the authors erred in any respect (it is indisputable that they did in a few, and could reasonably be argued that some errors remain uncorrected...while some choices which _have_ been "corrected" have turned out not to have been so erroneous after all), then subsequent evidence regarding the incentives and constraints on collective human behavior can be factored in to make whatever changes are necessary.

    To the third group, the only proper response is gunfire.

  3. Outstanding post Francis. Thank you for your clarity and logic.


  4. Seidelman is a special kind of stupid. Not only should he be beaten for his willingness to surrender the protections of law to an executive completely incapable of respecting its limitations, his teaching credentials need to be yanked and his career wrecked as an example to succeeding generations.

    His piece in the NYT a month or so ago wasn't even entertaining to dismantle, but I did it anyway, if only to embarass him as much as he embarrasses my tribe.


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