Has the U.S. Constitution Lost Its Meaning? A Debate
What makes law binding — Randy Barnett
I have decided to paraphrase Randy Barnett’s passionate discourse which highlights what I felt was the top two portions from this youtube clip. The below is a very rough paraphrase to try and make the narrative as readable as possible and provide as much context as possible. If I made some editorial errors please feel free to comment. I feel very passionate about this matter for reasons I will explain in future blog posts. Right now I will simply post my paraphrase but I hope to expand on why I think what he said was so important. If you are interested in this discourse then there may be further development in the future as it pertains to contracts and insurance.
Randy Barnett’s discourse on who is governed by the Constitution
The Constitution is not the document that you suspect it to be. This is not the law that governs us. We the citizens don’t consent or agree to being governed by this law. This was one of Spooner’s points he made in his book “no treason” we are never asked to consent to be governed by the Constitution of the United States. The Constitution really is a document containing the law that governs those who govern us.
We know that because unlike us who were not asked to consent to be governed by the Constitution each and every person who governs, pursuant to the powers created by this document, takes a personal oath to follow this Constitution.
Article 6 of section 3 of the Constitution reads
“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”
It does not say “the Constitution” rather it says “this Constitution” this is a very important difference with a distinction in that all government officials are bound to obey the text of “the Constitution” and are not bound to obey the interpretation of the text which exists as a separate entity.
The people who are to be bound by this law can no more change the meaning of the law that governs them without going through the appropriate change process which is defined in this Constitution by article five than we can change the laws that are imposed upon us without going through the legislative change process.
If we violate a speed limit we are bound to that speed limit even if it’s an unreasonably low speed limit. We’re not allowed to adopt a “living speed limit” or a “speed limit of the moment” speed limit without going through the legislative change process.
The same thing that’s true for us and the laws that are used to bind us is true for the laws that are used to bind those that govern us. This leads us to consider the following proposition, “the meaning of the text of the Constitution should remain the same until it’s properly changed by amendment.”
I would like to restate this because this is the very definition of originalism. “The meaning of the text of the Constitution should remain the same until it’s properly changed by amendment.”
Randy Barnett’s discourse on our moral duty to obey the law
The question we are addressing tonight “what makes a law a law,” can be seen as simply “what is accepted.” This however doesn’t mean that the law is based upon “what is just” or “what is right.” Yes we can tell what the law is but the real question is, “is the law that’s imposed upon us binding in conscience on us.” The question is not whether some specific statute is “the law” but rather whether we have any moral duty to obey that statute. The issue of whether or not there is a moral duty to obey a statute imposed upon the people by their government is really the question.
The answer that I give in my work is that we have a moral duty to obey the law given the following limitations:
1. If there is good reason to believe that the intention behind why the statute was enacted was related to the protection of people’s rights.
2. If there is good reason to believe that a statute doesn’t violate our rights.
3. If there is good reason to believe that a statute is necessary for the protection of the rights of others.
If we believe that a law was enacted for the above reasons then those reasons give us the ground to follow the law. It follows that the above listed reasons provided a necessary duty to follow the law. Our motive in following the law is to respect the rights that our fellow citizens have. We have a duty to respect the rights of others. This duty comes indirectly through the law if the law is necessary and proper for protecting the rights of others.
But it is important to know if we have a legal system of the kind that can produce laws of that sort. I think that the Constitution if followed could be that legal system. Unfortunately, the Constitution as it was written is not followed. Because it is not followed I’m not sure that the laws which emerge from our current legal system carry with it a duty of obedience.
This idea is the political philosophy of the United States of America. It is the American political philosophy that was enunciated in our founding document. Our founding document was not the Constitution of the United States, nor was it the Articles of Confederation. Our founding document was the Declaration of Independence which created us as a separate polity. The Declaration says,
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are (the individuals rights to) Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
The American theory of legitimate government is:
“To secure these rights governments are instituted among men deriving their just powers from the consent of the governed.”
The reason why governments are given power is to secure the rights of the governed. The question we have to ask ourselves is, “is the Constitution a structure that can secure these rights if followed?”
If your answer to that is “if followed the Constitution is not a good enough structure to secure the rights of the governed,” then you would say the laws that are imposed upon us are not morally binding. But, if you think that if followed the Constitution is a structure that could produce laws that are necessary to secure the rights of each and every one of us, then you would have to say that this is a document that’s worth following.
The question I would ask is, “are we following the Constitution now?” The answer is we are not.