Constitution
Henry George: The
Land Question (1881)
What is the slave-trade but piracy of the worst kind? Yet it is
not long since the slave-trade was looked upon as a perfectly
respectable business, affording as legitimate an opening for the
investment of capital and the display of enterprise as any other. The
proposition to prohibit it was first looked upon as ridiculous, then
as fanatical, then as wicked. It was only slowly and by hard fighting
that the truth in regard to it gained ground. Does not our very
Constitution bear witness to what I say? Does not the fundamental law
of the nation, adopted twelve years after the enunciation of the
Declaration of Independence, declare that for twenty years the
slave-trade shall not be prohibited nor restricted? Such dominion had
the idea of vested interests over the minds of those who had already
proclaimed the inalienable right of man to life, liberty, and the
pursuit of happiness!
... read the whole article
Nic Tideman: The Constitutional
Conflict Between Protecting
Expectations and Moral Evolution
Constitutions must be amendable, to allow
for the possibility of incorporating new moral insights into them. This impinges
on the protection of expectations, including those regarded as property.
Protection of property rights is achieved by constitutional restrictions
on the ability of voters and legislators to reduce the value of property
by regulation, taxation or expropriation. But such restrictions also prevent
voters and legislatures from reflecting new moral insights in legislation,
if those insights would reduce the value of property. There have been times
in the past when moral development has compelled societies to change laws
in ways that reduced the value of property (e.g., elimination of slavery).
We cannot guarantee that there will be no future advances in our moral evolution
that would require similar changes in laws, reducing or eliminating the value
of what we now consider property. Looking forward to the possibility of such
moral advances, we should design constitutions that permit amendments to
reflect new moral insights, while prohibiting legislators (or voters in referenda)
from passing laws that redistribute in ways not explicitly sanctioned by
the constitution.
1.
The Possibility of New Moral Insights that Necessitate Redistribution
2.
Assigning the Costs of Moral Accidents
3.
The Possibility of a Right of Secession
4.
The Complementary Right of Equal Access to Natural Opportunities
5.
Power, Population and Process ... Read the whole article
Nic Tideman: The Political Economy of Moral
Evolution
A very significant step in the incorporation of a newly discovered moral truth
into our social order is its embodiment into our constitution. Mere legislation
does not suffice to certify a moral truth, for a reason articulated by Bruce
Ackerman in an exegesis of the views expressed by James Madison in Federalist
103. We understand that citizens have
too many other interests in life to attend to all the political issues that
arise. Therefore everyday politics is bound to be dominated by a few people
pursuing narrow interests. In the constitution-writing process, on the other
hand, the level of involvement is sufficiently extensive and the level of consensus
required sufficiently great to permit those who succeed in having their views
incorporated into the constitution to say that they speak for the whole nation.
What is crucial, according to Madison, is not that the letter of established
constitutional procedures be followed, but rather that the society be widely
involved in discussions about what is done. This was Madison's reason for arguing
that the constitution written in 1787 could be valid despite the fact that
the group who wrote it was not supposed to be writing a constitution. Ackerman
argues that the same reasoning applies to the seemingly defective procedures
by which the post-Civil War constitutional amendments were forced through,
and to the revision of the Supreme Court's interpretation of the Constitution
in the 1930's, under Franklin Roosevelt's threat of court-packing. The standard
constitutional amendment process, of course, is designed to entail the levels
of involvement and consensus that permit the advocates of a successful amendment
to speak for the nation.
While the constitutional process succeeds in achieving a substantial consensus
about moral truths, it is not a perfect process. Our constitutional reversal
with respect to the prohibition of alcohol is proof, if one were needed, that
not every idea incorporated into the constitution is an advance. The real truth
of any idea comes not from the fact that it is incorporated into a constitution,
but rather from the consensus that supports it. And in the process by which
a constitution evolves, there are often substantial groups that feel extremely
ill-treated. These groups can attack the justice of any constitutional outcome
on the ground that those who favor the successful outcome are judging their
own cause. ... read the whole article
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