NOTE TO SELF, BASED ON QUAKER TESTIMONIES OF INTEGRITY, SIMPLICITY, PEACE, EQUALITY, AND COMMUNITY:

1. Love the Lord your God with all your heart, mind and soul, and your neighbor as yourself.
2. Do what you say, say what you think, think what is true.
3. Subtract superfluities from your life, speech, desires and thoughts.
4. Don't initiate aggression against the persons or property of others, nor support people who do, including the people who "constitute" the government.
5. Respect life and natural law.
6. All people are endowed by their Creator with equal and inalienable rights to the earth and to the fruits of their own labor, and a "Citizen's Dividend" funded by a "Single Tax" on the unimproved value of land and other natural resources would be the fairest way to protect these rights.

For supporting materials, see the Archive and the Recommended Reading and Videos section at the bottom of this page.

Friday, January 25, 2008

Rewriting the Constitution at The Volokh Conspiracy

I've recently engaged in a lengthy discussion, primarily with one other commenter, in this comment thread to a post on "Human Imperfection and Governmental Legitimacy" by Orin Kerr at The Volokh Conspiracy. My first comment in the thread was the following:

The truth is that, as Lysander Spooner famously illuminated, in the world as we know it "consent of the governed" is a myth, a total legal fiction, as is governmental authority that purports to be based on such consent. We're better off to the extent that the culture -- including legislators, judges, voters and non-voters -- recognizes that truth. Recognizing that truth should lead to more humility on the part of legislators, should lead them to be absolutely sure that what they're enacting is not contrary to natural rights "retained" by the people, and should lead the public to demand such humility from "their" legislators. (Which natural rights have we "retained"? ALL of them.) "Consent of the governed" is less of a myth in the context of very local governments, and as Thomas Jefferson explained, this is the level at which the bulk of government should be carried on, with the people delegating to "higher" functionaries only what they deem truly necessary and beyond their competence. "Democracy" moreover took a wrong turn in its early infancy when it arbitrarily assumed that a mere majority of 51% was enough to confer legitimacy on measures that limit the freedom of those who have not explicitly consented to those measures or the process by which they were manufactured. The arbitary number should have been more like 90%. I bet you could get 90% of voters to agree that murder is a crime; you probably couldn't get 90% to agree that smoking marijuana is a crime, though.

As for how fallible judges should view "laws" passed by fallible legislators purporting to act on behalf of a fallible public, no one's said it better than Lysander Spooner in the 2nd chapter of his The Unconstitutionality of Slavery (1860):

"Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals ‑‑ let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.
In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law [*16] contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal [*17] rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed "strictly" in favor [*18] of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit: "Where rights are infringed, where fundamental principles are [*19] overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects." [*20]
It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law."