Constitutionalism and Reasonability

The comments on Mark’s post below have grown to the point where I’m not sure I want to intervene, and my Internet access is limited this weekend anyway, but Freddie’s comment early in the thread raises many important points, and I’d like to respond to them here.
I’d written:

To find a grant of plenary power in what is clearly a restraint on the taxing power (the general welfare clause) or, worse, to find such a grant in the preamble, makes a mockery and a waste of the rest of Article I, section 8. The document can’t have been written this way by any reasonable person. The founders were reasonable, and therefore it wasn’t.

To which Freddie replied (and he’s in blockquote for the balance):

I think, with time, even you could find your reasoning trivially invalid. What is reasonable is debatable. Whether the Founders were reasonable is debatable. (Ask a slave. Or a woman. Or an American Indian.) What the specific passages you refer to mean is debatable. Here we are, debating it. When you stamp your foot and declare certain things plain, or obvious, or clear, or whatever else, you are merely dressing up argument by assertion.

I’d not thought I was stamping my foot, but rather just pointing out something interesting about the logic of how the Constitution was written.

One can have enormous moral blind spots toward non-whites, women, the poor, and others, and still be able to write a logical sentence or two, right? If not, then we really should just burn the damn thing and be done with it. But I don’t think this is the right way to go, and obviously neither does anyone else. So let’s make the best of what we have, and presume that the Founders were, while often morally compromised, at least capable of good prose.

That’s the kind of reasonableness I was relying on. Nothing more. Now, if the Founders did have this kind of reasonableness, then a narrow reading of the general welfare clause seems appropriate. That’s all I was arguing.

We don’t even have to approve of the narrow reading’s consequences as we see them. We’re still free to dislike those consequences if we prefer. But if we affirm a broad reading, we must in the process admit that the Founders wrote a bunch of redundant clauses into the Constitution — clauses that they themselves knew were redundant. I find this an unlikely thing for them to have done.

We can further say that the Founders, technically competent though they were as legal writers, were brutes toward the Native Americans, were racists, were male chauvinists, and were much else besides. And these are quite true. Still, as a logical inference from the structure of the text, the narrow reading of the general welfare clause remains a strong one, and the (good, entirely righteous) moral objections to things the Founders believed elsewhere are irrelevant.

Some will say “[some] specific things are not enumerated, but we can extrapolate/their broad categories/the same fundamental ideas/clearly this section gives Congress the right/obviously that would fall under this clause….” It is always the same in these arguments: everything is crystal clear to the man who is speaking his agenda. Why should the use unmanned drones or space flight be meaningfully extrapolated from the document, but not the application of a desperately needed health care overhaul? I know, I know– you think it’s obvious. Everything within the document that supports the America you imagine is obvious. Every other reading, including the reading that recognizes that was the Founders’ intent that the document evolve, is some spurious dishonesty intended to lead us down the road to serfdom.

Even if this were true, it would not be damning. I could very well be right, and, sure, that would be awfully convenient for my side. Wouldn’t it? But this is true of everyone, regardless of their view of the Constitution.

Now, you may deny my assertions, but you haven’t done so here. You’ve merely complained about them. At best, this makes us even. Might I not have formed my political beliefs in the course of studying, and forming views about, the Constitution? Is there something wrong with this approach? Not at all! Come, let us reason together…

And in fact, I do not think the Constitution gives me everything I want. There are many things whose constitutionality I have to concede, even though I think they are bad ideas, and even though they are not at all a part of the America I imagine.

I think Senators and Representatives should have term limits, but the Constitution doesn’t seem to permit them, not without an amendment.

I think military conscription is not only bad policy, but also an obnoxious affront to individual liberty. Yet Congress has the power to raise an army — it’s right there in the text — and this power has always been understood to imply conscription. Alas.

I think our current system of copyrights is absurd and hurtful to artistic innovation. I would even try going without copyrights entirely, in the America I imagine. But this, too, is an enumerated power. I can’t say it’s unconstitutional, even though I’d certainly like to.

I could go on, but these are enough. The Constitution is neither perfect nor a perfect expression of my preferences. It’s pretty damn good, though, and it’s what we have agreed to be governed by. So let’s continue to discuss it and take it seriously. (Really, you have no idea how cheered I am that people are doing so. Even if it is just a phase.)

When I mention slaves or women or American Indians or simply those too poor to be granted a vote in early America, I’m sure there will be eye rolling; I’m sure some will see it as a typical lefty breaking out the litany. But you will surely agree– such people were denied rights so basic and so necessary that no one would now deny them. How can you reconcile this with the purity of your ultra-originalist reading?

There was no eye-rolling on my part, I can assure you. How do I reconcile my sympathies for the marginalized with my originalism? It’s a fair question, and a tough one.

First, my originalism is tempered quite a lot by the fact that unlike some conservatives, I wouldn’t dare repeal the Fourteenth Amendment. I’m a tremendous supporter of the Fourteenth Amendment, and I think its clear meaning — pace Justice Scalia — is to include everyone, in whatever groups or relative statuses they find themselves in. The Fourteenth Amendment is designed to prevent the emergence of permanent underclasses, and while it hasn’t worked perfectly, it’s been a powerful check on that tendency.

Second, I would say that while the Founders had some awful moral blind spots, they were also highly insightful about many, many things. We find them appalling about women and slaves nowadays by virtue of the moral reasoning that we inherited from them. Many of them, Jefferson included, knew that they were appalling, and that they would be so judged by us!

But if it weren’t for them, and if it weren’t for some of their liberal compatriots in Europe, we might still be claiming that blacks were inferior, that women were the weaker sex, and that the poor should not be trusted with a share in government. People reasoned this way for many, many centuries — and then something amazing happened — the classical liberal revolutions in England, the United States, and (yes) France. We live in the political/moral universe they created. The American founding was part of that, and so was the Constitution. The overall moral logic of the document might have been thought up by people who owned slaves and oppressed women, but this (often true and excellent) moral logic in no way justified what they were doing.

But some of these brilliant Founders who we worship like secular deities were desperately committed to the perpetuation of an unconscionable regime of slave labor. Including Thomas Jefferson. Including George Washington. They weren’t just a product of their time; they weren’t just in need of more education. They were wrong. They were desperately wrong, and thank god, we as a culture and a polity recognized that and allowed the need for change to overwhelm our sanctity for the document. Nobody mistakes the abolition of slavery for a situation of dueling interpretations. The document was simply a racist, slavery-affirming document. Original intent is no panacea.

As a matter of historical fact, the abolitionists were divided over whether the original Constitution, pre-Thirteenth Amendment, supported slavery. Lysander Spooner and Frederick Douglass, both first-rate thinkers, held that slavery wasn’t constitutional, because anything so obviously illiberal would need an explicit, unmistakable warrant in the text before it could possibly be allowed. Lacking any such warrant, they argued that Congress could, and should, simply legislate slavery out of existence, even before the Civil War.

What do I think about this now rather moot historical question? I wish I could agree with them, but they were wrong. Several clauses of the original document were obviously meant, and understood, to refer to slaves and slavery, even if the words “slave” and “slavery” did not appear. These clauses would be meaningless gibberish otherwise, and — by the canons of legal reasoning I’ve already leaned on in this post — we must never presume lawmakers to have written gibberish. We certainly needed the Thirteenth Amendment.

Would you like to talk about gay rights? Do we really need to wonder, here? I think you’ll admit: gay marriage would have been seen, in historical context, as an abomination. There’s no consideration of such a thing because the very idea of gay rights was so absurd at the time that there was no need to explicitly write them out of the document. Could you imagine that George Washington would want gay men and women serving in the American military? He was wrong. If we have to preserve the original meaning of the document, we have to preserve, with ruthless honesty, the philosophical perspective of those who wrote it. Even when they were totally wrong.

Of course the Founders would have opposed same-sex marriage. No argument there! Many of them favored the death penalty for my kind. (Jefferson, a liberal’s liberal, preferred castration.)

But if we take the First, Fifth, and Fourteenth Amendments at their word, and if we affirm the principles of religious freedom, freedom of association, and equal protection of the laws, are we not eventually forced to concede that same-sex marriage should be allowed? I think we are.

The Bill of Rights sets out some huge ideas — they’re vast generalizations about individuals, societies, governments, and history — and it should surprise no one if, in time, we realize that our understandings of our own principles had been far too limited. It should be no surprise if James Madison likewise had far too limited an understanding. But we can still say he got the principles more or less right.

That’s where I stand, and I don’t honestly care about whether his conclusions about this or that right were perfectly correct. It would be rather silly for me to expect this, because, gifted as he was at abstract reasoning, he was lousy at applying it. We can do better, given our greater experience, our greater knowledge, and (frankly) a much better Constitution as amended.

The Constitution was an experiment in greater liberty — far from perfect by anyone’s lights today, but a pretty good try at the time. Its interpretation today should be guided by the original public meaning of the text… and that meaning was precisely that the boundaries of individual liberty should be expanded. Where power was granted, it was granted explicitly, because power was intended to be narrow. Where liberty was granted, it was granted widely, as with the Ninth Amendment, because we were intended to be a nation not of political power, but of individual liberty.