Why Strict Construction is not Enough

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Published on: November 6, 2014

I both like and respect strict constitutional constructionists.  Like them, I am a right winger.  But I fear they are committed to a hopeless approach to restoring the rule of law, because they operate on a naively modern conception of what the rule of law is which is also ironically ancient and Platonic.  They have an unrealistic, impractical philosophy of the law.  The rule of law is not the rule of a text (the “positive” law) whether we like it or not.  It is the rule of a dominant tradition which determines the use of the written text of the law, and that use determines the practical meaning of the artifact. 

The static text of the law, by the very nature of how it takes on meaning (through relative use), is incapable of either verifying or falsifying complex interpretations of it in judicial decisions about “facts” which are controversial for the same reason.  (This does not mean that it is not apparent that the decisions are moral or immoral by the light of natural law.  But then the specific content of natural law is unpacked by competing traditions like Christianity and humanism.)  This is analogous to the logical fact that data is incapable of verifying or falsifying a scientific theory.  Every view of the “data” is theory laden (rooted in a wide-ranging conception of Reality) from the outset.  Just look at the debate about global warming and then the debate between Jefferson Davis and his statist enemies about the meaning of the constitution while its ink was still wet.  Right out of the gate, this narrative about state’s rights proved that the text of the law is not some stable basis with respect to which legal theories can be falsified or verified “objectively.”  To say that one of the interpretations is clearly false simply invokes a particular view of what it means to interpret the text rationally.  And this is a philosophical question about which the left and right will never agree and have no way of terminating except by dominating the whole culture.  Sure, I think the liberal interpretation of the constitution is crazy.  But my use of the word “marriage” and the phrase “equal protection” cannot force the Eighth Circuit to comply.  The truly practical question is how to deal with the fact that people are free to use language, and therefore determine its meaning for themselves, any way they want.

Me

Is the success or failure of the constitution of 1789 an empirical question or not?

Strict Constructionist

It’s true that the constitution is no longer in force, but it is not the constitution that has failed.  Liberals have deconstructed it in their own way.

Me

Well, why has it been so easily deconstructed?  Why has it been so easy for liberals to do what they have done to the written text of the constitution?

Strict Constructionist

It wasn’t easy.  It has been a concerted, well-conceived project executed with the utmost discipline.

Me

Alright then.  Why has the constitution been vulnerable to this concerted effort?  Isn’t this something it should have been designed to parry?

Strict Constructionist

Any law would be in danger in the face of this kind of effort.

Me

Very well then.  Why is any law at risk in the face of such an effort?

Strict Constructionist

Because the people themselves don’t know what the law is and they fail to defend it.

Me

Fine.  Why don’t they know what the law is and defend it?

Strict Constructionist

I suppose because they are uneducated and otherwise lazy and stupid. 

Me

But then we are in agreement that unless the people are taught how to properly use the text of the positive law — a tradition of use — no law is going to mean much.

Strict Constructionist

So?

Me

So you are admitting that the solution is democratic — a majority of the people have to enforce a tradition of interpretation.  All of us on the right have to admit that the rule of law, practically speaking, is a combination of the text of the law, and a tradition which enforces how that text is used.  And this enforcement is democratic.

Strict Constructionist

So?

Me

So the constitution of 1789 has not made good use of democracy.  It has failed to deal realistically with the inherently democratic nature of the rule of law.  It has failed to explicitly separate the government from all of the means of cultural production, and education in particular, and it has failed to subject judges, including those of the Supreme Court, to democratic elections.

Strict Constructionist

But then a democratic majority can change the meaning of the law.

Me

So?

Strict Constructionist

So then the law is just the ebb and flow of the dominant tradition.

Me

But that is what it is now.  Only now the dominant tradition is made dominant not by the people, but by a government which controls education because the constitution of 1789 does not explicitly separate the state from education.  Right wingers just have to face the fact that if we do not make our tradition, our way of using the language in general, and therefore the language of the written law, the dominant cultural tradition, we will never have the law we want to live under.

Liberals deconstruct the language of the law by adopting their own rules for using terms like “marriage,” “election,” “general welfare,” “right,” “commerce,” “necessity,” and finally “justice.”  See the third part of my book Neopopulism as Counterculture entitled “The Myth of Judicial Objectivity.”  Conservatives appeal to a tradition of linguistic use in interpreting the constitution.  The rule of law is not and cannot be the rule of a static text, as if text does not have to be interpreted and applied.  The rule of law is a dominant tradition’s interpretation, or even deconstruction (by the standards of a competing tradition), of the static text of the written law.  It’s time to get real about this.

The meaning of the law is determined by a tradition.  In order to make a tradition dominant we need two things in place:  A separation of the government from all of the means of cultural production (e.g. education and the media) and the right to elect our judges.  Then we have to add the hard work of making our Christian and conservative tradition dominant in the mind and heart of the people. 

Given the freedom to do so, we can in fact make our tradition dominant.  Liberals are terrified, above all else, of private education and judicial elections.  They know that the Christian tradition has the moral power to dominate the interpretation of the positive law as soon as we take away the government’s power to destroy this kind of democracy. 

So what is democracy?  Democracy, in my postmodern, Christian tradition, is first and foremost the private ownership and/or control of all of the means of cultural production — education, art, the media, policy making science, and immigration.  It is a complete rejection of the modern notion that universal reason unites us in a universal understanding of the law.  And so the government must not only be prohibited from owning and controlling any means of cultural production, the people must have the democratic power to veto anything the government does.

Strict constructionists are typically enemies of democracy because they do not understand it in these postmodern terms.  They are still living in a fantasy where the meaning of the static text of the law is somehow positive and judges are Platonic experts who have access, unlike the people at large, to its absolute meaning.  No.  Whether they like it or not the meaning of language is its function — how it is used.  And the fact that this is how language takes on meaning implies that the strict constructionist’s project is hopeless.  His project is about how to make sure that our experts, rather than their experts, are getting appointed by a government which always has a vested interest in expanding its power.  But if he rejects the democratic process he cannot bring this about.  There is no other method. 

It is time for those of us on the right to understand two things: 

  1. Practically speaking the rule of law is just the rule of a dominant tradition, barely constrained by the positive law. 
  2. Democracy is not about majority rule from a postmodern perspective, but primarily about the private ownership and control of the means of cultural production — precisely because the republican myth of rule-by-objective truth has turned out to be just as dangerous, if not more dangerous than democracy. 

Whose objective truth?  Which objective truth?  Unless we wish to continue to subject ourselves to those who have the gall to claim that they know what the absolute (“scientific”) truth is, we must reform democracy into the private ownership and control of all of the means of cultural production and then make very good use of it.  We need a new constitution which is based upon these realities.

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