Saturday, February 4, 2012

Just Me

Last year, while I was collecting all of these quotes, I evidently wrote the following in response to something that James Wilson had written about the power or right of majorities of the people to reshape their constitutions in whatever way they desire:

"I do not think that that is true. How could a mere majority bind the minority in that way – and, if it did, wouldn’t it make the idea that all the people in any way consent to the acts of their representatives utterly chimerical? They would not have agreed to the terms or limits of the powers delegated. They would not have agreed to the selection of representatives. What did they consent to, other than the formation of government, which arguably did not depend upon their consent in the first place (a government can be created without their actual consent, and it can operate on them; they have the right to be a part of it and, collectively, to alter or abolish it, and replace it, but if government is union of our rights to self-defense, why would some of the people need the consent of others in order to commence government? Maybe there is no consent to the existence of government, and no need to consent to it, but the people do have the right to shape and reshape its form, provided that they do not make it into anything that it is not, and which it may not justly become)? The majority has no right to make a constitution that is inconsistent with or unnecessarily dangerous to the rights of anyone.

"Whether a nation has a written constitution or not, therefore, natural law -- the inherent rules of equity and justice -- must be a part of their constitution. It shapes what, precisely, the people ever had the right to institute, and, therefore, what they lawfully may have possibly instituted."

That is absolutely right.  I suppose it is debatable whether the term "constitution" should be understood as including natural law or as referring, instead, to the part which is made by humans (which must nevertheless necessarily be shaped and controlled by natural law) but either way, while there is some importance to the idea that a valid constitution should be established by a majority, rather than a minority, the real issue is the extent to which that whole package of powers, forms, and limitations is consistent with justice.  The majority should have its choice between constitutions which are not inconsistent with the demands of justice.  Additionally, as a practical matter, it should also be the majority (or its representatives) who ascertain the demands of justice and evaluate different arrangements of powers, forms, and limitations as to how they would meet those demands.  However, no majority has a power to make it just for its government to do what is otherwise unjust.  I am not simply saying that a majority should not do this -- I am saying that it is not a possible act.  A majority can cause that kind of system to be established and enforced, but the government's just and legitimate powers will be controlled by natural law, not by popular sovereignty.

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