A new theory of constitutional cynicism
"Once they do not rule, laws do not sleep. Laws die."
Kynikos: Why do we believe in the law? In this country, our country—in the United States in 2023, I tell you, there is no law, nor even order—only mere capricious force.
In such a state of society, I believe, Judges 17:6 is in effect: every man should do what is right in his own eyes. The only law is the natural law. In such a state of society, cops are no different from robbers—the law is, do what you must to dodge their grasp.
Simplicia, I like you—but you are hopelessly naive, and your bad ideas are only helping your enemies take advantage of you.
Simplicia: Nonsense! The rule of law is the essence of civilization. And our rule of law, the common law with its English roots, is the crown jewel of American civilization. And all our laws are fruits of our fundamental founding document: the Constitution.
Why does law matter? Look at the places in the world which lack it. Venezuela, Sudan, Somalia—who wants to live there? Rule of law is as important as clean water. And where rule of law is absent—clean water is also absent. Funny how that works.
Under the rule of law, everyone who does not follow and respect the law is an enemy of the law, and is threatening this palladium that preserves our nation from chaos, war and barbarism. Respectful obedience for our law and Constitution is the heart of our safety, security and prosperity.
Kynikos, I like you—but your bad ideas are dangerous, and should be banned from the internets.
Kynikos: The Constitution is a piece of paper in a museum. It is not valid or binding. It has no jurisprudential value of itself. It matters only as an exegetic substrate for the arbitrary, contingent and historical body of precedent we call “constitutional law.”
No thinker, given only the Constitution, could repeatably derive “constitutional law” from it—just as no thinker could repeatably derive the Talmud from the Torah. Thus, the Constitution is America’s basic law in the same way that England is a monarchy: in theory, but not in practice.
Venezuela, Sudan and Somalia do not suffer from a lack of law. These countries have constitutions, too. In fact, Venezuela is so constitutional that it has had no less than 26 constitutions—not even counting the Viceroyalty of New Granada. Indeed, the whole country of Venezuela (like California) is no more than occupied Hapsburg land. And the Hapsburgs, too, had law…
Rather, these places suffer from a lack of order. Order is not law, but a prerequisite to law. In the rule of chaos that exists without order, any idea of law is a joke, a delusion, a devil’s snare.
Is there order in California? Only in some places. In other places, law is indeed a joke. Most Californians could reach such a place in an hour’s walk from their front doors. And essential to the concept of order—let alone the more refined concept of law—is its uniformity. Neither order nor law is meaningful unless it is uniformly applied.
Rule of law is good. If law does not rule—if even order does not rule—there is no rule of law. Rule of law is good, and it would be good if we had it. This should not lead us to pretend we have it. It should lead us to attempt to obtain it. And if we want the rule of law, we must start by attempting to obtain its prerequisite—the mere rule of order.
Simplicia: This is so wrong, I can’t even.
Haven’t you heard of freedom, Kynikos? When you talk of order, all I hear is the stamp of fascist jackboots. How would you start, Kynikos, with this order? Rounding up the unhoused? The underprivileged? Gassing them? We know where this thinking leads.
In a modern country, law exists to protect the weak and friendless. Human beings have a human right to a roof over their heads. And when they have no other shelter, to evict them from their tents—even if camping on the sidewalk might slightly annoy the delicate noses of the privileged bourgeoisie—for some technical violation of some petty municipal code—is a human rights violation. It is utterly un-American. It is a violation of our most cherished values. It is a violation of our cherished Constitution.
Kynikos: Pretty sure no one on the Ninth Circuit has a tent outside their house. And as for the bourgeoisie, the nostalgie de la boue—the tolerance, even adoration, of chaos and filth—is not characteristic of the bourgeoisie. It is characteristic of the nobility. The Constitution says America has no nobility—the Constitution is a piece of paper. “Constitutional law” is a mere figleaf for the reign of this increasingly deranged elite.
In an orderly country, every featherless biped, every human being, regardless of age, sex, race or ability, is in one of two categories. Your civilized biped lives in one of two ways: as a responsible adult, or under the care and authority of a responsible adult.
If, at some place and in some time, this situation does not pertain—if a country is not even under the rule of order—how can we even talk of the rule of law? Constitutional law, amid the rule of chaos, is a speeding ticket at the Indy 500. The law itself is chaos—and we can see the chaos it breeds on any city street.
Yes, in America there are still many enclaves, rural and suburban and sometimes even urban, where order seems to persist. This is an illusion. This is not order, but inertia.
These places are protected from the reigning chaos of the age by systems, institutions and rules inherited from the past: police and prisons and borders. Enough people still believe in these artifacts that they have not yet vanished from the earth. Yet, if they did not already exist, no one would invent them. The energy and conviction is lacking. This shows that they are legacy systems which will inevitably disappear.
Constitutional law, within the lives of those now living, will realize that it is a human rights violation for the rights of a human being to depend on the GPS coordinates where their mother squeezed them out. The real purpose of this antiquated doctrine is clear. It is and always was an unsubtle proxy for racism. The landmark decision that overturns it, and implements true world freedom for the first time, will make Brown and Roe v. Wade look like firecrackers. Our living Constitution, finally realizing that no person is illegal, will be alive for the first time.
Within a few years after this triumph of human rights, America will finally look like the world. That is, it will look like the rest of the world: the Third World. The noble joy of bringing this about will be comparable to the joy of defeating South African apartheid in the ‘90s. (Indeed, borders are literally apartheid.) The America it creates will look like South Africa in the ‘20s. And your suburb will not be exempt—not once police and prisons have gone the way of insane asylums and prayer in schools. South Africa has a Constitution, too…
This is the future of the living Constitution. And what stands in the way of this future?
Simplicia: Delighted that you ask!
As you know, I am a classical liberal. I do not believe that the Constitution bans police, prisons and borders—and I don’t know anyone who does. I do believe that the Constitution, or any fundamental law, must be interpreted according to the original intent of its authors and the people who ratified it.
Kynikos: But is it? Is it, Simplicia?
Simplicia: It is true that constitutional originalism has not always been the dominant school of constitutional interpretation. However, since I believe in the rule of law, I also believe in the rule of precedent, stare decisis, which tells us that past decisions must not be lightly overturned.
Kynikos: What do you mean by lightly?
Simplicia: That is a difficult question. What is not a difficult question: whether the drafters and ratifiers of the Constitution meant to ban police, prisons and borders.
Burke wrote that the statesman should operate on the state like a surgeon operating on the body of his own father. Applying constitutional originalism to the body of 20th-century precedent that issued from the legal-realist theory of the “living Constitution” is a difficult and dangerous operation indeed.
But before we tackle any such difficult operation, we must tackle the easy operation. Going forward, we must interpret the Constitution as it was written.
Law is valid only because the government has the consent of the people. Our sacred Constitution is binding only because it, with its amendments, was ratified by a legal due process. The voters and statesmen in this process did not mean to enact a law that “no person is illegal,” or any such nostrum of 21st-century progressivism.
If we can hold to the basic and timeless principle, obvious to everyone, inherent in the concept of law itself, that a law keeps meaning what its original ratifiers thought it meant, we can prevent the Constitution from being twisted in future into a mere tool of power. If law can be twisted by twisting the meaning of words, there is no law.
Kynikos: Precisely! It can be twisted. It has been twisted. And there is no law.
There is no “Constitution in exile,” any more than an “Articles of Confederation in exile” or an “Instrument of Government in exile.” Once they do not rule, laws do not sleep. Laws die. If laws are contracts, a contract which is broken by its parties does not become dormant. It becomes invalid. Its legitimacy cannot be restored.
Constitutional law, the body of precedent, is alive; the Constitution, the 18th-century piece of paper, is dead. Even if some revanchist movement were to restore the old piece of paper, using it not only to stop new innovations in kritocracy but to reverse old ones, it would not be the old Constitution. It would be a new one.
Let us tear apart this theory of “constitutional originalism” from bottom to top. It will be seen that originalism is no more than a cope by which we avoid thinking about the reality of our dead Constitution.
First, why is the Constitution valid? Why is it no more than a piece of paper?
Simplicia: The Constitution is valid because freedom depends on the consent of the governed, and it was ratified by the American people.
Kynikos: Lysander Spooner, the cranky 19th-century libertarian, rebutted this argument a century and a half ago. He wrote:
The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing… Those persons, if any, who did give their consent formally, are all dead now.
It is impossible to understand constitutional originalism without understanding that 18th-century New Englanders were law nerds. They were not salaried “wagecucks.” They were a community of small businessmen and farmers who lived and breathed contracts. Defining political science in terms of contract law made total sense to these people—just as defining it in terms of operating systems would have made total sense to a community of software engineers.
Yet the conceit falls apart as soon as we look at it. Not only is there no such thing as a heritable contract—no one can sign a contract that binds his descendants—the United States already had a contractual government, the Articles of Confederation. This new Constitution was simply illegal under the Articles, which provided:
T]he Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.
No such thing was done. The Constitution was ratified by the states under its own terms. Nice trick if you can get away with it. (Modern historians see that trick much the way the contemporary opponents of the Constitution did—as a right-wing coup to install a quasi-monarchical regime and rein in the turbulent and dysfunctional street democracy of the Confederation period.)
Simplicia: Individuals come and go, are born and die, but the American people lives forever. The Constitution was established by the will of the American people.
Kynikos: This kind of rhetoric drops the veil of rational contractualism and returns to a fundamentally spiritual and poetic conception of government.
Very well! Government is a spiritual and poetic thing, not a contract. It is possible to believe in inherited contracts—if you also believe in ancestor-worship. The early Americans, like almost all people in history, had great respect for their ancestors. Their law-nerdery could coexist easily with this universal religious period.
The Americans of the founding generation also loved to “larp” their non-ancestors in Greece and Rome. The Greeks and Romans also created rationalistic philosophy on a deep substrate of ancestral religion; and they also applied this contradiction to law. Fustel de Coulanges writes:
The origin of ancient laws appears clearly. No man invented them. Solon, Lycurgus, Minos, Numa, might have reduced the laws of their cities to writing, but they could not have made them. If we understand by legislator a man who creates a code by the power of his genius, and who imposes it upon other men, this legislator never existed among the ancients.
Nor did ancient law originate with the votes of the people. The idea that a certain number of votes might make a law did not appear in the cities until very late, and only after two revolutions had transformed them. Up to that time, laws had appeared to men as something ancient, immutable and venerable.
Place these laws by the side of the worship of the dead and of the sacred fire, compare them with the rules of this primitive religion, and they appear in perfect accord with all this. Man did not need to study his conscience and say, “This is just; this is unjust.” Man believed that the sacred hearth, in virtue of the religious law, passed from father to son; from this it followed that the house was hereditary property. The man who had buried his father in his field believed that the spirit of the dead one took possession of this field, and required a perpetual worship of his posterity. This was the manner in which the laws were made; they were religion itself, applied to the relations of man.
The survival of these ancient instincts into the world of the New England Puritan, mated with the new commercial currency of contract law, created our concept of constitutional government—which makes no sense without both the premodern assumption of ancestor-worship, and the modern invention of “law as code.”
Yet we no longer bury our fathers in our fields. We no longer worship our ancestors; often we positively scorn them. Why, then, should we believe in contracts signed by these dead white men—especially when these contracts are all that protects our enemies, with their “living Constitution,” who have no respect for laws or ancestors?
Simplicia: I hear all that you have said. I myself am a rationalist and do not believe in the worship of the dead.
Yet there is still a rational place for old things, which have proven their worth. Under the Constitution, over the last 250 years, America became the greatest country in the world. Isn’t that “lindy?” If it isn’t broken, why fix it? We may not need the worship of our ancestors, but isn’t success its own evidence?
Kynikos: It is hardly surprising that a new country with an empty continent would have a good chance of world domination. Nazi Germany had a good chance of world domination, too—if it had succeeded, Simplicia, would you be a Nazi? I think so. It is one thing to lament that the winners write the history—another to openly endorse it. From “success is its own evidence” to “Hail Victory” is no giant step.
But let us go deeper into the rotten philosophical heart of constitutional originalism. The leading school of originalism is original public meaning, which follows logically from the contractual theory of political law.
Even so late as 2023, a word in the Constitution does not mean, pace Humpty Dumpty, what someone wants it to mean. It means what everyone in 1789 thought it meant. Since the whole point of a contract is that its meaning does not change, we cannot use historical changes in language and perspective to sneakily amend the Constitution without a vote.
The difference between original public meaning and original intent is that often, political actors do not speak in good faith. What they are actually trying to do, and what they say they are trying to do, can be two different things. Historians may try to read the esoteric minds of dead men; lawyers can only take their words at face value.
Thus we might recast original public meaning as original good faith—using historical utterances of the drafters and ratifiers with the assumption that they argued in good faith. We assume that they were trying to do what they said they were trying to do, for the reasons that they claim motivated them.
Simplicia: For once, Kynikos, that seems unobjectionable.
Kynikos: It is very objectionable! For it completely vitiates your rationalistic argument for the Constitution as the tried-and-true engineering solution of the ages.
If we accept the design of the drafters because it worked, not because a few dead men 250 years ago worshiped it on the family altar, we view our founders as engineers. Yes; they built a thing that worked. Yes; we would like to keep it working.
To keep it working, we would do better to refer to their engineering documentation, not their marketing brochures. The original public meaning of the Constitution is the propaganda that justified it to the 18th-century market. All these customers are dead. Success is its own evidence, and the system worked—and if it worked for any reason beyond luck or accident, it worked because its designers designed it well.
Few statesmen in any era have spoken in complete good faith. To keep the machine running, we should refer to what they thought, not what they said—not original good faith or original public meaning, but original private intent. If we assume that public statements always hide a hidden meaning, we must look for original covert intent.
If we truly respect them, we must respect what they were actually trying to do. Whether our respect for the Constitution is based on modern empirical experience, or ancient ancestor worship, original public meaning fails completely.
Simplicia: I… I can’t even.
Kynikos: It gets worse!
For if we respect the Constitution because we respect the practical political wisdom of its designers, or because we honor them as our sacred ancestors, not even original private intent pays them sufficient respect.
Rather, the test must be what they would think now. Who better to interpret a contract written by the dead, than the dead themselves? If we have any respect for the designs of the founders, the best way to respect them is to consult them.
Neither original good faith, nor original covert intent, is what they would think now. It is what they thought then. This is useful, but—when the drafters and ratifiers of the Constitution spoke of the right to keep and bear arms, did they mean AR-15s? Did they mean Abrams tanks? How can we systematically answer this question?
For the most accurate interpretation of the Constitution, we must update originalism. We must look to updated good faith or updated hidden intent. But a proper updating model is by no means equivalent to the “living Constitution.”
To update the views of an 18th-century statesman, assume that life after death is real, and the statesman survived in Heaven looking on—with an omniscient view of Earth. But it is erroneous to assume that this omniscient view is updated in the same way that earthly attitudes and perspectives have shifted over the same time.
For example, most 21st-century intellectuals believe in universal and unconditional racial equality. Most 18th-century intellectuals did not believe in this principle. If we assume that, surviving in Heaven with an omniscient view of Earth, they would have come to believe in this principle, we are assuming too much.
In Heaven, the social, political, and economic forces that change our minds on Earth do not exist. We can hope that 18th-century racist statesmen would have changed their minds along with us. Sitting on a cloud in their powdered wigs, they have seen the light, and now are all for diversity, inclusion, and LGBTQ+. They are probably even wondering why the stripes in the flag are still red and white and not a rainbow.
But… hope is not analysis. If we actually think they would have changed their minds, we cannot assume that they did so just because we did so. We have to model them. We have to upload their personalities into a simulation, present the evidence of history after their deaths to these simulated avatars, and ask if this new evidence actually changes their minds.
Imagine doing this for any point on which humanity has changed its mind. Imagine doing it for racism. In the Anglo-American legal tradition, we know that the best way to investigate a question is an adversarial dialectic.
Therefore, when we ask whether Alexander Hamilton, James Madison, and John Adams would be racists today, and thus interpret the Constitution in a racist way, we must update them using a simulated adversarial process. Whether we are looking for updated good faith, or updated covert intent, we must seat our statesmen on a cloud, freshen the powder on their wigs, and present the facts of history since their deaths—from the mouths of two advocates, one racist and one anti-racist.
Simplicia, I am sure you will enjoy this new process of constitutional interpretation. It will make excellent TV. And after we do it a few times—AI will learn to do it for us.
Simplicia: I used to think you should be banned from the internets. But now, Kynikos, I know. Our democracy itself is at risk.
Kynikos: Don’t worry! This is just a thought-experiment. We needn’t actually do it. It would be illegal in Europe, if nothing else. I like being able to go to Europe.
What we learn from this experiment has nothing to do with hate speech. What we would actually learn would be that our statesmen, if accurately simulated, have no interest in digging that deep into the weeds.
Rather, I believe, they would have a simpler and more elementary question. They would ask why we even cared—because it would be obvious that the government we have has nothing but the most superficial resemblance to the one they designed.
Their answer, as law nerds, would be that the Constitution is obviously null and void. As a contract, it has long since been broken. As an operating system, it has little or nothing to do with the principles of its designers.
Both from updated covert intent and updated good faith, it is long since time for all good men and women to abandon their “sad devotion to that ancient religion”—and do what is right in their own eyes, following only the laws of “God and nature’s God.”
Simplicia: Blocked and reported. You will be held accountable, Kynikos.