by Sheldon Richman
Sheldon Richman is the editor of The Freeman and In brief.
The question in the title is not like Who’s buried in Grant’s tomb? The answer isn’t the National Archives. I mean the real constitution — the set of attitudes that reflect what Americans people will accept as legitimate actions by the people in government. Those tacit rules are the real constitution, not a piece of parchment behind glass somewhere or a booklet in someone’s pocket. This real constitution more or less makes the written Constitution what it is at any given time. When Peter Finley Dunne’s Mr. Dooley said that th’ Supreme Court follows th’ illiction returns, he was only a little off.
The U.S. Constitution has changed over the years in response to changes in the (tacit) constitution. Plessy v. Ferguson became Brown v. Board of Education. The Commerce Clause started being interpreted in ways that would have astounded some (but not all) earlier Americans. Same with General Welfare. This presents a problem for constitutionalists: constitutions (rules) can neither interpret not apply themselves. People interpret and apply them. So how can a constitution do the work that the constitutionalists expect it to do?
Conservatives scoff at the thought of a living Constitution, the idea that its meaning should change with the times. Thomas Sowell has quipped that a living Constitution is really a dead Constitution. By that he means that unless the Constitution’s content is fixed and timeless, it no longer qualifies as a constitution.
This argument has a plausible ring. But it runs up against the problem I’ve cited. No set of rules interprets or applies itself. In that sense all constitutions are living. It is too glibly asserted that we know what the Constitution really means. The Constitution is a historical document, and people divine its meaning from their view of the epoch that produced it, which is in turn influenced by their moral and political values. As the historian Merrill Jensen wrote in The New Nation: A History of the United States During the Confederation, 1781-1787,
Since the founding fathers themselves disagreed as to the nature of the history of the period and as to the best kind of government for a new nation, it is possible to find arguments to support almost any interpretation one chooses. It is not surprising therefore that conflicting interpretations have filled thousands of pages and that all this effort has never produced any final answers and probably never will, for men have ever interpreted the two constitutions of the United States [including the Articles of Confederation] in terms of their hopes, interests, and beliefs rather than in terms of knowable facts. . . . When the Constitution was submitted to the public in October 1787 the controversy rose to new heights. Men talked in public meetings and wrote private letters and public essays in an effort to explain, justify, or denounce what the Convention had done. . . . Some said there would be chaos without the new Constitution; others said that there would be chaos if it were adopted.
And the framers were alive during this debate! What chance do we have?
Jensen goes on:
Once it was adopted Thomas Jefferson and Alexander Hamilton, with two opposed ideas of what the United States should be, laid down two classic and contradictory opinions of the nature of the Constitution. [Emphasis added.] The two basic interpretations may be simply stated. Jefferson held that the central government was sharply limited by the letter of the Constitution; that in effect the states retained their sovereign powers except where they were specifically delegated. Hamilton argued in effect that the central government was a national government which could not be restrained by a strict interpretation of the Constitution or by ideas of state sovereignty.
Who was right? Jefferson or Hamilton? What does right signify here?
The Auburn University philosopher Roderick Long recently touched on this subject in a paper. Long’s purpose was to explore the political and other implications of what the philosopher Ludwig Wittgenstein called the rule-following paradox. We know rule-following when we see it and engage in it, Wittgenstein observed, but what is it? It is neither words in one’s mind or on paper (or parchment) that compel certain behavior, nor physical motions, which could be consistent with many different rules. Rather, it’s a kind of purposeful human action (agrave; la Ludwig von Mises) in a particular context that cannot be reduced to either a mental state nor a series of motions. Long quotes Wittgenstein: [A] move in chess doesn’t consist simply in moving a piece in such-and-such a way on the board — nor yet in one’s thoughts and feelings as one makes the move: but in the circumstances that we call ‘playing a game of chess’, ‘solving a chess problem’, and so on.
Thus, Long continues, One moral of the paradox is that action is an indivisible whole, of which thoughts and movements are aspects but not separable ingredients; action is more than the sum of its parts. The identity of my thoughts depends on how I translate them into action — not bodily movement, but action.
This may not seem to shed light on the problem at hand: seeing to it that a particular interpretation of the Constitution is followed. But Long continues:
If I think that following a rule must somehow be anchored by the rule’s having its application already built into it, then a close look at rule-following is bound to turn vertiginous, because there’s no such thing to be found. As Wittgenstein puts it, any interpretation still hangs in the air along with what it interprets, and cannot give it any support. But what he infers from this is not that grasping a rule is impossible, but rather that there is a way of grasping a rule which is not an interpretation, but which is exhibited in what we call lsquo;obeying the rule’.
No Automatic Pilot
This isn’t just esoteric abstract philosophizing. As Long writes,
Just as it’s tempting to think that my grasp of a rule is something independent of my actions, something that makes me behave in a certain way, so it’s equally tempting to think that a society’s legal system is something external to that society that makes it orderly. But as the rule-following paradox shows, there couldn’t be any such self-applying entity. . . .
To return to the Constitution, it’s not as if the proper interpretation (whatever that may be) can be hardwired somehow to guarantee that legislators, presidents, and judges will act in certain ways, or that the public will demand it. At every point people will be making the interpretive decisions, including the decision over which interpretation is right. “[G]overnment is not some sort of automatic robot standing outside the social order it serves,” Long says. “[I]ts existence . . . depends on ongoing cooperation, both from the members of the government and from the populace it governs.”
In other words, a particular interpretation of the Constitution in reality means that people act in particular ways to achieve particular values in particular situations. There’s no automatic pilot. So how can champions of freedom create the conditions in which people in government act in pro-freedom ways?
That’s where educational efforts enter the picture. To change the Constitution in a pro-freedom direction, we first have to change the (tacit) constitution, that is, people’s ideological outlook. If there are lines that government won’t cross today (and these are becoming fewer), it is because enough people would find such action intolerable. Liberty’s champions have to use all educational means at their disposal to constrict the range of government activity.
Jeffrey Rogers Hummel, an economist and historian, explains (pdf) that the Constitutional Convention was dominated by nationalist Hamiltonians rather than (anti) federalist Jeffersonians. In drafting the document the centralists largely got their way, and that Constitution was ratified. Then at Anti-Federalist insistence the Bill of Rights was added, although the critical Tenth Amendment (states’ rights) was drafted to work in the nationalist’s favor. Yet, Hummel writes, “[T]he Anti-Federalists . . . won on the question of how the Constitution would operate in practice. . . . To oversimplify only slightly, the Federalists [Hamiltonians] got their Constitution, but the Anti-Federalists [Jeffersonians] determined how it would be interpreted.” At least for a while.
Thus words faithfully recited, or inscribed on parchment and hung in the National Archives, will never be enough to assure liberty. Hummel’s account confirms the value of FEE’s program all these years. If liberty and free markets are to be established, government power must be rolled back. And if government power is to be rolled back, the real constitution — people’s hearts and minds — must be pro-liberty. The other Constitution will follow.