On a trip to the Smithsonian exhibit, Homer Simpson takes the original copy of the US Bill of Rights out of its case and, as you might predict, gets chocolate on it. The security guards present are not amused. Attempting a remedy, Homer licks it off – but he removes a part of the text along with the chocolate. “You just licked off the bit that forbids cruel and unusual punishment,” says the first guard. The second pounds his brass knuckles into his palm. “Heh heh heh. Beautiful!”
It’s a very funny scene. But why? Surely it’s because we take it for granted that the wrongness of “cruel and unusual punishment” does not depend upon its being written down, that it is more than words on a page. The guards, by contrast, are not convinced of this; and unfortunately for Homer, they’re the ones with the knuckle dusters. (Perhaps this is a parable?)
Every advocate of a new constitution to limit government is motivated by the knowledge that government has overstepped the limits laid down by the old constitution; no advocate of a constitution can be unaware that every constitution in history has failed to halt the growth of government. Yet strangely they are not troubled by this.
But why would they be? After all, we know that some limits on government have not (yet) been exceeded thanks to constitutions. Although, if they work some of the time, why don’t they work all of the time? This is hardly a small matter. At a bare minimum it tells us there is another factor at play here; perhaps this, and not the constitution, is what prevents government from “going too far”.
Incidentally, we might note that the empirical reality of limited government is not a particularly impressive recommendation – or rather, it wouldn’t be in any other walk of life, (“Would you like to buy this bucket?”, “Certainly not. It’s full of holes”, “True, true. But it doesn’t leak that much”). Holding the government to a different standard isn’t necessarily the exclusive preserve of enthusiastic interventionists.
To return. Where government rests on the consent of the governed it’s a fair bet that the ‘other factor’ is public opinion. Let’s say that something, x, is forbidden by the constitution, and, further, public opinion is against x. Either x is done or it isn’t. If the government does x, the constitution was useless. But if the government doesn’t do x, it’s impossible to tell whether this was because of the constitution, or because a self-interested political class believed that public opinion was against x and acted accordingly. To say that the constitution was why x was not done is much too strong a claim.
Now say x is forbidden by the constitution, only this time public opinion favours x. If the government does x, the constitution was useless (thankfully, as far as public opinion is concerned). But if the government doesn’t do x, it’s impossible to tell whether this is because of the constitution, or simply because the government misread public opinion. Just like before, to say that the constitution was the cause is much too strong a claim. (Of course, a “principled politician” – in the preferred liberal interpretation – might tell us that he refused to do x because of the constitution, and we might even believe him. It’d be better to exercise caution though, and not only for the rather trivial reason that politicians have been known to lied from time to time. A more fundamental point is that surely our “principled politician” would be opposed to an illiberal measure regardless of what the constitution says). One thing that we can say with confidence, however, is that in a political system based on consent sooner or later x will be done, if not by this, then by another government more in tune with public opinion, more responsive to its whims. In other words, a more democratic government. And the constitution – either in what it says, or in how it is read – will likewise become more democratic.
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