Constitutionality, Legality, Moral Legitimacy
By J. Reichert
[email protected]
Special to The Libertarian Enterprise
A cursory reading of your local morning newspaper will reveal
that a great deal of confusion exists about the distinctions between
what is constitutional, what is legal, and what is morally right. I
have, sitting before me, an article which provides a case in point.
In it, a medical doctor, who has makes himself prominent as a
spokesman for gun control, argues that the eradication of personal
firearms ownership is morally right, because the right to own arms is
a freedom easily abused, and that the abuse of this right works great
havoc. He also argues that the government ought to do what is right,
and as a crowning argument states that "... no court decisions
rendered in the last fifty years have found any individual
constitutional right to own firearms ..." I think his latter
statement is untrue, and I find it very strange that he considers
court decision fity years old a better guide to the meaning of the
Second Amendment that decision handed down one hundred and fifty
years ago. Apparently, the constitution has no objective meaning for
him, but means what the very newest judges say it means.
This physician plays fast and loose with terms like
constitutionality, legality and moral legitimacy, and it seems
to me that the distinctions between these three adjectives are
critical to any defense of the positions adopted by libertarians. The
practice of confusing these three categories, purposefully or
through ignorance, is a tactic almost inevitably adopted by those who
argue in favor of government control over our private lives. In this
brief article, I will attempt to clearly delineate the distinction
between the terms constitutional, legal, and morally
legitimate, and demonstrate that they can be synonymous, but are not
necessarily identical.
The term constitutional means "in accord with the
constitution", that is, as used in a country having a written
constitution, "not in conflict with any of our constitution's written
terms". It is of the utmost importance to keep in mind that written
terms, at the time of they are composed, have an objective meaning.
In the case of a poor writer, lacking any power of exact expression,
it may be a meaning known only to the writer himself. But when
something is written, something is meant.
Our constitution was authored by writers of considerable skill,
and there is no reason to think that there is any difference between
what they meant, and the objective meaning of their words. It is an
overall plan of government, and a guarantee that there will remain a
sphere of private action for each individual, one in which that
individual may act without having to defer to the claims of other
individuals, government officials, or even to the institutions
ambiguously called Society and Democracy.
In the United States, the Constitution is one embodiment of the
social contract posited by John Locke, and is designed to assure
breathing space for something larger than itself, civil society.
In Lockeian terms, civil society refers to the natural, organic order
of human relations, which is itself a manifestation of the inherent
order in the world. Our overall view of government is different from
others which preceded it, because it adopts this contractarian view,
and it is radically opposed to any political philosophy which
maintains that governmental authority springs from a divine mandate,
or from some historical imperative, which is the Marxist word for
God. The fact that government is a contract means that it may, and
in some cases ought to be, broken; and the Bill of Rights contains
various provisions to assure that the means to break it will be at
hand, if the need arises.
In a certain sense, this view of government is opposed to the
idea of moral legitimacy. By the moral legitimacy of a government,
I mean the foundation of its right to use coercion in carrying out
its commands, its right to rule. The American philosophy of
government comes close to being opposed to the idea of moral
legitimacy, because it does not rely upon the existence of a higher
authority to confer legitimacy on the institution of government, but
relies upon the consent of the participants. Ultimately, it takes
the position that the absolutely good cannot be known, but is willing
to let ideas, movements, people and institutions demonstrate their
utility by leaving them to their own devices, assuming that what is
useful will be popular, and what is popular will survive. Its can be
said that its claim to moral legitimacy is its refusal to claim any
ultimate, theologically based, moral legitimacy.
If this thinking is consistently and rigorously applied, it means
that the inherent rightness of a proposition is no reason to
elevate that proposition to the level of a law. The spirit of such a
system is opposed to such things as vice laws, blue laws, and similar
schemes which are really designed to regulate the interior, spiritual
life of the individual. The moral howling monkeys of our age can
apparently feel the conflict between their own spiritual instincts
and the rationalism of the American constitutional system, so they
assiduously invent imaginary material threats to the public at large,
in order to frighten their fellow citizens into cooperating in
enacting laws which they desire. For this reason, they produce
studies which tell us that, unless certain laws are passed, the earth
will become so hot that it will be utterly inhospitable to human
life; that only disarming us will prevent "a general war of all
against all"; that unless scientific research is thwarted, monstrous
genetic disorder will creep into all forms of life, leading to the
utter sterilization of the planet. In the final analysis, they try
to convince us to surrender our liberty.
From all of this, it is possible to infer what law is; it
consists of the commands of government, but it is also the mechanism
which enforces, administers and regulates those commands, which gives
them material force. It consists of a highly disparate collection of
institutions and activities, all bound together by one common thread,
that they are aimed at securing compliance with certain specific
commands. Interestingly, the constitution does not contain within it
any warranty that all government executives, judges and legislators
will, for all time to come, act in strict observance of the plan it
sets out. It makes no such promise, because it is a promise that its
authors knew could never be kept.
If I return to one of my original premises, that the terms of the
constitution have an original objective meaning, I must restate the
preceding paragraph, and point out that it contains no guarantee that
any government functionary will honestly and fairly enforce its terms
in accordance with that original meaning. Since such functionaries
usually act by making or enforcing the laws, this means that what is
constitutional is not necessarily legal, and what is legal is not
necessarily constitutional. Carrying this to its logical conclusion,
it means that a law is not necessarily constitutional, even when the
United States Supreme Court claims it is. And as we all should know,
even that which is both lawful and constitutional is not, for that
reason, right or morally legitimate.
When my readers hear someone set to rest a question of
constitutional interpretation by exclaiming that "The Supreme Court
has already spoken on that subject", I hope they will jump up and
vigorously object, and point out that even the Supreme Court cannot,
after two hundred years, change the objective meaning intended by our
constitution's draftsmen. And when the delicate subject of some
action's illegality arises, I hope they will be quick to point out
that illegality is no guarantee that the action is unconstitutional,
or immoral.
I hope they will do this, because it is necessary to the
preservation and cultivation of the spirit of civil disobedience in
this country, a spirit that the founders hoped would never die out.
It is also necessary as a means of reinforcing a recognition of the
personal responsibility imposed upon each individual, the personal
responsibility of maintaining his or her own liberty. Liberty cannot
be maintained for us by any document or institutional mechanism, but
only by incessant individial effort. And we cannot have liberty
unlesss we first accept the responsibility of exerting such an
effort.
The author, Joseph William Reichert, is an attorney practicing in
Albuquerque, New Mexico, and concentrating in the field of appellate
advocacy.
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Index to return to The Libertarian Enterprise, Number 12, August 14, 1996.