Thursday, April 14, 2011

Brown, Spooner, and the Constitution

Is the Constitution just any other contract that is binding on signatories and no one else? Aaron Brown agrees with Lysander Spooner that it is in this post. I have a lot of comments on there that accept that it is just such a contract for the sake of argument, but I conclude with a hesitation. Simply put, if constitutions are reducible to contracts why does nobody treat them as such? That would seem to provide good reason to question whether they are contracts in the traditional sense. I'm not sure of any reason to think they are contracts except for a vague "it's a legal sort of document that discusses rights and obligations of people" argument. Fair enough, but the question remains - if it is a contract in the traditional sense why does nobody seem to think about it or treat it as a contract in the traditional sense? Common sense and conventional wisdom are not good bases for argument, but I have trouble jettisoning common sense and conventional wisdom for deduction from abstraction alone. This argument also seems based on the assumption that there is no such entity as "society" and that there are only individuals... another assumption I'm not entirely sure about.


  1. "Fair enough, but the question remains - if it is a contract in the traditional sense why does nobody seem to think about it or treat it as a contract in the traditional sense?"

    Clearly some people do and clearly when a right expressly stated in the Constitution is violated lots and lots of people treat it like it was a violation of a K - "You can't do that, it says so in the Constitution" is a refrain I here quite often.

    Anyway, just because a majority of people think something stupid doesn't mean they are right. Argumentum ad populum much?

  2. Russell Hardin has a much better model than the contract model: constitutions are coordination devices.

  3. Anyway, you can't have a notion of constitution as contract without having some sense that a natural law exists; so if you reject natural law then it isn't surprising that you find the notion unsustainable.

  4. Gary -
    1. Right, but saying that violating the Constitution is a bad thing isn't the same as thinking of it as a contract are two completely different things. I talk about violations of Constitutional restrictions and I don't think of it as a traditional contract.

    2. As for argumentum ad populum - I did nothing of the sort. In the complete absence of a good reason why I should think of it as a contract in Brown's post I'm simply noting that it is not the obvious choice at the outset. I didn't claim popular opinion was decisive and in fact I specifically said it wasn't decisive. You should read me closer before you go around slinging accusations like that.

    3. Why can't you have a notion of a constitution as a contract without a notion of natural rights? Of course you can.

  5. Gene - the other useful discussion of Constitutions as distinct from contracts is Buchanan. I'm not sure what Hardin means by "coordination device" or whether it is similar.

  6. (1) Except that is not what they are saying; they are in fact saying - "Look, we agreed that if I gave up X, you would not do Y." The upshot of this is of course that modern liberals want it both ways - they want to say that a K exists and that is why you owe taxes but at the same time they don't want to recognize the K when it comes to burdens on the state. You hear this sort of thing all the time from the same people - look at all the things you owe because of the benefits you receive, but please shut up about the wrongs committed against you.

    (2) Actually you did make such an argument.

    "I didn't claim popular opinion was decisive..."

    "No one" recognizes this (this is probably hyperbole, but I take your point), thus it is silly to even consider it is your argument at base. It sounded pretty decisive to me.

    (3) Because natural rights theory has always been undergirded K theory; always. Look at all the K theorists - they all have some notion of natural rights that comes before the K and upon which the K is based. Explain to me how a K theory could lack a sense of natural rights. Why do you think K theory has fallen so out of favor with modern liberals when they rejected natural rights theory at the start of the 20th century?

  7. Daniel,

    Like I tried to argue on EconomicThought, simply because much of humanity has singled out Christianity for divine meaning and worship does not necessarily place it in a higher category than any other old mythology.

    I'm going to be frank with you, I think people are both too stupid and too scared to consider the possibility that the Constitution is a regular contract - they don't want to follow the premise to its logical conclusion. I think there's a large historical trend that man has always gravitated toward a state (some exceptions are interesting, however) probably because of a psychological need to "be protected," not because of any rational weighing of costs versus benefits nor any concrete understanding that a state is "necessary."

    In fact, I think you would agree with me that on the whole, states have done far more harm than good and that if history has taught us anything, it is that the state is the primary vehicle for the most evil minds on earth.

    I'm no psychologist, but that's my opinion.

  8. And my answer is the same as it was on there - I am not arguing from authority at all, I'm arguing from consensus on empirical evidence.

    None of the founders treated it as a regular contract. Nobody treats it like a regular contract. Come on Mattheus - have you abandoned your Austrian subjectivism? How can something be a contract between parties if none of the parties in question have ever considered themselves to be entering into a contract?

    What stupid and perhaps not scared, but lazy, is the tendency to force the Constitution into being a "contract" as traditionally conceived because it's too much work or too ideological threatening to consider the prospect that contracts are not the only things that are available to give structure to social order.

    Alternatives are not that hard to come by, Mattheus. Gene mentions Hardin. Buchanan and much of the public choice literature offers another.

    Your arguments remind me of claims that gifts can be thought of in market terms.

    It's a highly reductionist approach that you, Aaron, and Spooner are taking, and you certainly haven't provided much justification for why we ought to think of it as a contract.


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