Constitutional Government Not Explicitly Moral

Political Philosophy
1

I know my title is inadequate, in that of course it is true, but I wasn’t sure how to better name this topic in that amount of space.

I would like to discuss some thoughts I’ve been having recently about the nature of government, specifically its genesis, and how to put it into context when discussion rights and the protection thereof. It is not an ideal I speak of, but rather the reality of it. That is, the foundation on which the ideal may or may not be constructed.

It seems that government itself is really no more than an arrangement on the use of force. Rather than solve disagreements by means of gun and sword, or club, a group of individuals establishes this mutually accepted arrangement. Ultimately, the arrangement allows for the use of force, or focuses the use of force in society, on preserving that arrangement. In other words, the minority that dissents (say, criminals, or even rebels) are subject to punishment.

Such an arrangement, for all practical purposes, can be thought of as a social contract. Even if there’s a king, some amount of acceptance of his rule is necessary for him to avoid revolution. Empirically, practically, governments are social contracts concerning the use of force.

With that understanding, our own government, within its proscribed limits - though history shows where those explicit limits have failed and succeeded against the buffetings of popular opinion - is nevertheless neutral in its legitimacy. That is, in many ways politics can be looked at as a more efficient, non-violent war or battle over the use of force in society. Legitimacy depends entirely on how people choose to govern.

Repulicanism therefore, provides the non-violent means of instituting a legitimate government. This is important because the non-violence itself allows for the free flow of ideas, whereas brute force more effectively limits ideas. But the majority of the people must nevertheless be committed to objective individual rights beforehand.

In the end, my main point is that a civilized organized government itself offers no moral legitimacy. Because it provides order does not make it legitimate, the principles behind its operation do. Looking at it from the other side, one should not expect government to be wholly legitimate, rather it is an arrangement concerning the use of force. It may infringe upon your rights, but its institution as a republican system alone is legitimate in a certain sense - enough that you need not overthrow the republican system, but rather work within it, advocating your ideas to other people. The fight for individual rights against thieves and barbarians can occur withing a republican system as without it.

So, please comment on the idea that a constitutional republic is not inherently legitimate as a guarantor of rights, but is legitimate as the means to guarantee those rights.

The greater context for this post is the idea that ideas matter. That the most important battle for individual rights occurs in the minds of your neighbors.

2

The U.S. was governed by the Constitution of 1787 which not only did not forbid slavery, but incorporated slavery into the fiber of government. Slaves were counted as 3/5 of a person toward representation in the House of Representatives. Slavery was not forbidden and the Constitution required that escaped slaves be returned to the State from which they escaped. This are are quite immoral provisions and they were part and parcel of the Constitution of 1787.

It is no complete surprise the the Union eventually broke precipitating the bloodiest war in American history. The Civil War: 620,000 dead. 1.5 million maimed. In a country with a population of 30 million! For the current population that is 6.2 million dead, 15 million maimed.

Bob Kolker

3

A “constitutional” government is simply one set up according to constituted laws on a piece of paper somewhere rather than, say, by dictatorial fiat or whatever. It makes no evaluation as to the content of that piece of paper. The only real way in which a constitutional gov’t qua constitutional gov’t is better than the non-constitutional kind is that there exists some sort of legal limitation on what the gov’t itself can and can’t do. This is marginally better than any kind of unlimited gov’t.

And I’d say that the primary battleground in the war of ideas is in your own mind, not the minds of your neighbors. You have no ultimate control over what they will think or do, so fighting any kind of war for their minds is futile. All you can do is make sure that the light of thought does not go out in your own mind.

4

So, please comment on the idea that a constitutional republic is not inherently legitimate as a guarantor of rights, but is legitimate as the means to guarantee those rights.

The first idea that jumped to my mind is the concept of “objective control” - a written constitution enables objective control by putting the purpose and means of government in plain view for reasoned judgment. Similarly, though not quite as persuasively on the face of it, republicanism facilitates objective control by permitting the rational evaluation of the actions of those in office, and their removal for malfeasance (I say not as persuasive because objective control doesn’t obviously require that the electors consist of or be drawn from the public, though hereditary selection is clearly out of the question).

A practical case might be made that, similar to how free markets optimize prices by relying on the judgments of many rather than a few, republicanism effects the greatest wisdom in choosing public officeholders by relying on the judgments of many as opposed to the few. Although, the U.S. framers provided for (and republicanism allows) indirect election by select electors and intermediaries on the grounds that the public as such isn’t well enough informed to make such a judgment directly. The progression to greater enfranchisement of people and more direct election is a historical fact, but then, so is statism … I need to chew on that one a bit more, but suffice to say that on the subject of optimizing the choice of officeholders to conform to objective principles of governance, republicanism is at least open to question.

Another angle, however, is the concept of delegation to use force in self-defense. This might be a principled argument in favor of republicanism isasmuch as closing people out of the process entirely would completely deny that concept’s validity and undercut the government’s legitimacy. If delegation isn’t accomplished by letting the people choose government officials directly or indirectly, I can’t see how there is even the remotest form of delegation occurring. Majority selection is valid only as the best of imperfect options given that allowing a single individual to wield a veto over the election would simply not be practical. Part of the value of a written constitution is that it allows for the practical necessities of governance by placing such imperfect means in plain view for rational debate and judgment.

A final thought is that objective government must be relatively stable over the long term. To the extent that closing the public out of the process of selecting officeholders would foment revolution, I think that’s a good reason to embrace republicanism as a practical necessity of objective government.

5

The U.S. was governed by the Constitution of 1787 which not only did not forbid slavery, but incorporated slavery into the fiber of government. Slaves were counted as 3/5 of a person toward representation in the House of Representatives.

I just recently read something about this.

The southern slave owners would have had slaves count as full persons for representation (since those slave owners could then claim more representation in congress). It was the northern anti-slavery states that argued to make the distinction of representation be pinned to “free men”. It was, in effect, a sort of penalty to the slave owners. Also, I think they were very, very conscious of the hypocrisy.

It is significant to note that the words “slave” and “slavery” were kept out of the Constitution. Madison recorded in his notes that the delegates “thought it wrong to admit in the Constitution the idea that there could be property in men.” This seemingly minor distinction of insisting on the use of the word “person” rather than “property” was not a euphemism to hide the hypocrisy of slavery but was of the utmost importance. Madison explained this in

Federalist No. 54

:

Madison - But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another-the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others-the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation;

as a moral person, not as a mere article of property.

From How to Understand Slavery and the American Founding by Matthew Spalding, Ph.D.