MichaelM, in your view, who would be the author of the constitution, and how would he get everyone else to recognize it? If an alternative constitution were proposed by someone else, how would the choice between the two competing constitutions be made?
CF, it is most likely that no new constitutions will be written in the foreseeable future that could be anything more than mangled misinterpretations of existing ones (Iraq). It is also to be expected that progress, if there is to be any, toward an Objectivist style government in this country can only occur through incremental changes in laws, as the population is educated and changes its minds.
So this question needs to be asked in some more remote but still possible context that will reveal the principles that are the subject of your question. For instance, how would a free constitutional government be formed in sparse and scattered populations of men who survived some cataclysmic event, or who were pioneers in the colonization of space? These men could be either absent any viable government or so distant from existing governments that they are literally ungoverned.
In this case, there are no political rights [OPAR p.351], only individual sets of moral rights, according to which men interact. So long as these populations remain scattered and clusters of them remain relatively small, institution of a government would not be possible. If their numbers and contact among them grew to the point that they would begin to establish complex, long-term relationships, serious barriers to progress would arise. Specialization of labor and contracts would entail too much risk without the confidence in future justice that stable laws and consistent third-party enforcement can provide.
At this point, it is time to form a government and write a constitution. Those who recognize the need are motivated only by the desire for orderly socio-economic interactions within their sphere of existence. Each prefers, of course, that the principles enshrined in the Constitution will be 100% consistent with their own moral principles. In that, each is sure to be disappointed.
But the value that division of labor offers to them and the peace of mind that stable law enforcement promises is so huge that many are more than willing to compromise some lesser principles in order to enshrine the most important ones. These men proclaim their agreement with the new Constitution, not because they agree with its contents in general. They support it rather *because of* the principles therein they hold to be right, and *in spite of* the ones they consider wrong. Keep in mind that these judgments must be weighted in a hierarchy of long-range significance to one’s life.
[This is not some unique ethical situation. Except in the rarest of situations – in the presence of absolute perfection – this is the rational framework of all complex judgments. I judge this to be good/bad because of these aspects, and in spite of those.]
Every person who chooses in this manner to abide by the Constitution, both at the time it is written and in the future, both as it was originally written and in any future amended form, is a party to the “social contract” that empowers that government.
In this light, you can see that who actually writes/supports/enforces it has no relevance to its validity. A Constitution is never more or less valid than its principles. Consequently, since constitutions are sets of moral compromises among imperfectly knowledgeable men, it is quite possible to have two different constitutions for two different countries neither of which is measurably “better” than the other.
Control over the forming and sustaining of a constitution always falls to the group-in-agreement that can amass the greatest intellectual and physical capacity. Therefore, a perfect constitution can only be achieved when there are sufficient men within some identifiable segment of the universe who have mastered a rational ethics and politics and accumulated the necessary capacity and will to enforce it there.
All whose “in spite of” list exceeds their “because of” list and who foresee no prospect of improvement in their lifetime must choose among these options depending on their capacities and/or support among others: 1. go to another country, 2. form a different country (secede or go somewhere else) 3. remain but choose actions to minimize victimization, 4. live outside the law and undermine or overthrow the government (revolution).
The legitimacy of a government should be a separate question from its validity. Who has the right to form a government and write a constitution? Any group of men anywhere. But having the right to establish the legitimate government of a region does not bestow upon it any validity. Conversely, when overthrowing a standing statist government to install and enforce a valid constitution, one need not let that government’s legitimacy get in the way.
Interesting explanation but in my opinion not consistent with Objectivism.