Happy New Year!
Over at Wonkette, Jim Newell makes a good point with less nuance than I'd like (but, anyway, that's what they do at Wonkette.) It relates to my last post about Ron Paul's desire to amend the Constitution to end birthright citizenship. I'm not pretending to reconstruct Newell's argument here, but you could say it inspired me to inscribe this more robust critique of the Ron Paul ideology.
In short, I'm going to argue that a) Justice is built into the Constitution; b) Ron Paul and his supporters advocate measures that run directly afoul of it; and c) thus, Ron Paul is not really defending the Constitution.
Prohibition was once constitutional; this did not make it just, or even a very good idea (indeed, most libertarians would think it was both unjust and a very bad idea.) No matter: the justness of a law and its constitutionality are two different things, right? A law is not unconstitutional because it is unjust, and a good law does not become constitutional merely because it is just.
Justice and constitutionality are always two different things. Right?
Amendment 5 of the Constitution reads in part: "...nor shall private property be taken for public use, without just compensation." Amendment 4 reads in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
Amendment 14 reads in part: "No state shall...deny to any person within its jurisdiction the equal protection of the laws."
There is a thread running through the Constitution and its various amendments that makes it impossible to separate the legal content of the document from its substantive moral content. Amendment 5 only makes sense against a background conception of justice. Amendment 4 only makes sense against a background conception of the reasonable.
Indeed, for men of the Enlightenment, justice and reason were never far apart.
If the above is correct, then, in at least some cases, a law can be unconstitutional because it is unjust, because it egregiously violates the conception of justice built into the Constitution.
Now, to the point; or, more precisely, to a pressing question: what do or should we think of a politician who advocates amending the constitution in a way that would be unjust, in this special sense?
If Ron Paul were advocating the repeal of the 13th Amendment, his proposal would not only be unjust, but it would arguably violate the conception of justice that was built into the Constitution from the very start.
(The fact that the Constitution initially contained limited tolerance for slavery actually supports my point: those measures were added as a compromise, so that southern states would ratify the document. We know that the men who did the most to add their intellectual stamp to the Constitution hated slavery, and it was their sense of justice that was built into the very product of their genius.)
As for Ron Paul, David Duke, et al: they would not be standing up for the Constitution by proposing to violate the conception of justice that has always given the document meaning.
To stand up for the Constitution is to stand up for the morality built into the Constitution. To seek to amend the Constitution in a way that would fly in the face of that morality is to seek to introduce incoherence in the document itself. It is to be fundamentally incoherent.
I am beginning to think that, through accident or design, Ron Paul and many of his supporters are incoherent in just this way.
In this blog, I have consistently claimed that the 14th Amendment embodies an abstract principle of moral equality. This abstract principle grounds the civil rights legislation that Ron Paul rejects. Moreover, the ideal the 14th Amendment represents is itself a logical extension of the Constitution's conception of justice.
Most people are not like Ron Paul; most people don't think horrible injustice takes place when racist landowners and employees are forced to deal with those they hate. Recently, I've met several people on the left who expressed cautious support for Ron Paul. They don't support him any longer after learning of his rejection of civil rights legislation.
The support for Ron Paul, what little there is, is founded on either ignorance (on the part of the left) or wishful thinking (on the part of libertarians who believe/hope that the market alone is capable of producing justice.)
Ron Paul wants to change the Constitution to nullify equal protection; to neuter the branch of the government that obliges the states to adhere to this moral principle; to turn back the clock on the hard-won, gradual understanding of equality that ensures that all people no matter their racial status or state of residence have access to food, shelter, and medicine.
All of this, either by amending the Constitution, or (whenever possible) through federal legislation. All of this, whether he realizes the consequences of his proposals or does not. All of this, to empty out the Constitution, leaving a kenosis of self-serving legal positivism.
Demolishing the morality of the Constitution and uprooting its moral center doesn't make you a defender of the Constitution. Even if your weapon of choice is constitutional amendment.
1. Ron Paul wants to end birthright citizenship.
2. Doing this would require amending the federal Constitution.
3. Not every proposal becomes constitutional merely because it is added to the constitution; a proposal can be unconstitutional because it violates the conception of justice embodied within the document.
4. Ending birthright citizenship, emaciating the Equal Protection clause, etc. is unjust in just the way specified in (3.)
5. Therefore, Ron Paul's proposal is unconstitutional.
People can quibble with (4.) There's a broader point here: I don't think Ron Paul or most of his libertarian supporters really care about justice. They seem to think the Constitution can be interpreted ex nihilo (certainly, Ron Paul himself seems to believe this, as his comments on the Lawrence decision indicate.)
If Ron Paul and his supporters really don't care about justice, then they don't really care about the Constitution, either. No matter what they say.