L. Neil Smith's

Number 12, August 14, 1996

Constitutionality, Legality, Moral Legitimacy

By J. Reichert

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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