Monday, May 09, 2005

The Legitimacy of the Constitution

REVISED 05/10/05 (9:18 AM)

Thanks to a pointer from Randy Barnett (The Volokh Conspiracy), I read Lysander Spooner's 1870 essay, "The Constitution of No Authority." Spooner's anarchistic thesis is that the Constitution never was and never will be binding because it isn't a voluntary contract entered into by those presumed to be bound by it. That is, by Spooner's reckoning, the Constitution was simply imposed on us.

Spooner's right: The Constitution was simply imposed on us by those who actually consented to it. But so what? That doesn't necessarily make the imposition of the Constitution a bad thing. Consider this:
  • There are two competing systems: one would tax everyone in order to protect people from murderers; the other would require everyone to rely on self-defense, which would be inadequate in most instances.
  • Those who wish neither to murder nor to be murdered comprise 80 percent of the population, whereas the other 20 percent are of a suicidally murderous bent.
  • Murderous proclivities are unknowable in advance, so that it's impossible to create a society that consists solely of non-murderous people and erect a barrier between that society and a society of murderous people.
  • A powerful fraction of the 80 percent, knowing that they cannot identify the murderers in advance, make a rule that says "murder is wrong and will be punished."
  • The powerful minority then collects enough taxes to defray the cost of protecting everyone from murder -- even potential murderers. The protection enables non-murderous persons to go about their lives without being constantly on guard. And many non-murderous persons who might have been murdered are not murdered, though their identity is unknowable and they cannot be taxed additionally for the service.
  • Thus all non-murderous persons become more productive members of society. There is a positive net benefit for everyone -- except persons with a strong taste for murdering others.
There's nothing wrong with that outcome, unless you're a murderer -- or an anarchist. It strikes me as a good thing to impose a set of rules designed to protect life, liberty, and property from those who would deprive others of life, liberty, and property.

The Constitution is such a set of rules. It's an instrument of self-defense. Even anarchists believe in self-defense.

It's true that the Constitution isn't always properly interpreted or enforced, but the alternative is no common set of rules -- a state of anarchistic bliss in which Spooner and his ilk repose misplaced faith. As we have seen time and time again -- especially in America's cities -- lawlessness spreads like a cancer when the state does not or cannot enforce the rule of law. The ranks of the "20 percent" swell and a barbarous minority holds sway over a peaceable majority. And there's never an anarchist cop around when you need one.