Notes From Babel

Consent and the Constitution

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One of my Chapman Law professors, Tom Bell, is one of those scholars who, like Lysander Spooner and Randy Barnett, puts great emphasis on consent as the present source of the Constitution’s authority.  Bell writes:

Just because the Founders ratified a Constitution as they understood it does not mean that we ratify one with the same meaning. We ratify our Constitution, as we understand it, or not. We cannot justly be bound by others’ choices.

He then explains that the Constitution’s force is not in the words on the page, but in our collective agreement to its terms—as Bell puts it, our “collective hallucination of a federal government.”  Bell concludes:

The choice boils down to this: If you rely solely on original meaning, you will ordain and establish a Constitution that was. If you want to ordain and establish the Constitution for we, the living People, you have read it through living eyes.

Though it is with caution that I challenge the respected “consent theory,” I find it ignores a basic quality about humanity and its natural tendency toward continuity.  Without continuity, political organization and legal order would be all but impossible.  Were we the sort of being that the consent theorists take us to be, which refuses to be bound to custom and law unless and until the tender of actual consent, it is hard to imagine a political order that could pass muster for any length of time.  So would go our underlying intellectual traditions—taking the mood of consent theorists, what compunction is there to yield any deference to the long train of ideas going before us?  Cast off the old!  Remake the world anew!

If we reject continuity in our social arrangements and refuse to accept that we are bound by the laws, traditions, and intellectual foundations of the past, we ultimately cease to be the sort of creatures that can organize themselves into political communities.

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Written by Tim Kowal

January 11, 2011 at 8:33 pm

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