2014/01/22

Preamble meaning and purpose

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Preamble of the U.S. Constitution can best be understood and explained as a statement of purpose for the document that follows. Its functional meaning, by the common law rules of construction, is to restrict what follows to the purposes it expresses. Thus, a delegation of power that might seem to be plenary is to be interpreted as constrained to those purposes. As such, no delegations of power in the Constitution are plenary.

For example, consider the Elections Clause. Congress is granted pre-emptive powers over state laws to prescribe the time, manner, and place of congressional elections, except the place of senatorial elections. On a plain understanding of the words, that would seem to empower Congress to require congressional elections to be conducted within a one-nanosecond timeframe, while balancing on one's fingertip, at a polling place on the moon. Obviously absurd? Of course, but if you seek a textual basis for excluding that, it can be found in the Preamble.

2014/01/21

"Dead hand" problem for originalists?

In a recent post to his blog, "A simple (and serious) puzzle for originalists",
Eric Posner states "All originalists acknowledge the “dead hand” problem, and so all agree that the normative case for originalism depends on the amendment procedure being adequate for keeping the constitution up to date."

First, this originalist does not acknowledge the "dead hand" problem, as a general proposition. If a constitution is sufficiently well-written at the outset there is not necessarily any need to amend it to keep it "up to date". A constitution is written for human nature that has not changed much in 40,000 years and won't change much until we genetically engineer ourselves into having quite another nature.

Most of the demands to "update" the Constitution are demands to enable redistribution of wealth, or to enable arrogant people who delude themselves that they are capable of managing complicated systems if only they are given powers to "make us better". Lots of luck with that. Better not to let them try.

That is not to say that the U.S. Constitution could not use some amendments. I have proposed several. They fall into three categories. The clarifying amendments are to overturn wrong court precedents. They add no new powers or offices, and change no procedures. They would merely return us to what was originally understood. The remedial amendments are to correct some errors and omissions made by the Framers that they should have made shortly after ratification, but didn't. The substantive amendments would make structural and procedural changes, but mostly not to redistribute wealth. Mainly to provide additional protections for rights against the actions of officials.

Now we turn to the absurd arguments about voting rules. They are absurd because the votes of human beings are not independent random events. If they were law and government would be impossible. They are the result of an equilibrium among competing diffusion processes. A position in favor of some change initially develops among a few people, then spreads to others, while a position in opposition to that change develops in others and similarly spreads. Through public deliberation a stable balance is eventually reached, perhaps after decades, and if those favoring the change are sufficient in number, the change is adopted.

Of course, even this model is somewhat oversimplified, because for constitutional amendment to occur the balances must develop in each of several states and in the Congress. The main obstacle is not, however, the states, but Congress, if the amendment demanded would reduce their claimed (but often unconstitutional) powers, as many of my proposals would do. The main reason it seems so difficult to amend the Constitution is that most of the impulses to do so would be attempts by Congress to expand its power, generally at the expense of the states, and the states not being willing to let that happen. That is not a defect in Article V, but precisely the way it was supposed to work. The defect, which I address in one of my amendments, is allowing Congress to block amendments that would reduce its claimed powers. Since that is what most of my proposed amendments do, it is highly unlikely Congress would ever propose any of them to the states for ratification. From my originalist standpoint, it is Congress that is the problem, not the amendment process once the states get the proposed amendments.

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