A while ago, renowned Democrat and former Texas congressman, Robert Francis “Beto” O’Rourke, questioned the validity and relevance of a document “set down 230-plus years ago.” That document was the Constitution of the United States. He was criticized for questioning the Constitution, the values, and the principles on which the country was founded.
The question was, with the size of the American empire and current state of the world taken into consideration, do the Constitution and its principles still work today?
Beto was immediately attacked by the right for daring to question the Constitution, and he didn’t make all that many friends from the center or left for that matter either.
My question to this, however, is what the libertarian stance to that question would be. To the libertarian eye, does the Constitution still matter? The answer needs to be presented a little differently.
The Constitution: The Minarchist Perspective
In the minarchist worldview, the government is either a necessary or at least eventual entity for society to function. They believe in restricting and reducing the government down to the bare necessities required for order, such as the military and police, etc. Some other pieces of infrastructure, such as schools, roads, and other emergency services remain up for debate, depending on who you ask, but the baseline remains the same: For there to be order, there must be guiding rules, and that is where the rule of law and the Constitution come into play.
The Constitution, and by extension the country, was founded on very similar principles. Freedom of speech, the right to bear arms (specifically, to form militias to oppose tyrannical government, I might add), the right to privacy, and many other core freedoms considered to be almost inherent laid the groundwork for the growth and development of the United States. Infringements on American freedom are often immediately considered to be a violation of the Constitution, even if no such protections were explicitly listed within.
Surely to question the Constitution would be no different to a minarchist than to question freedom itself?
The answer is ‘no’.
One core aspect of the Constitution, which in many senses is a strength and potential weakness, is that it is amendable.
Other than its historical and foundational significance, the Constitution is little more than a set of laws. Sure, they may be the highest laws in the land, but they are no more than laws in the end, and as such can be changed if and when the needs of the country demand.
The original Constitution that was ratified in 1791 only had 10 amendments, and within 4 short years they had to add an 11th. In 1919, the 18th Amendment was added, kick-starting Prohibition only to be removed through the 21st Amendment in 1933. The latest amendment to the Constitution was as recent as 1992 with the addition of the 27th.
In that sense, Beto’s question has already been answered: The laws of the land already change and adapt, and the Constitution isn’t some relic but rather a living document that is continuously updated as the need arises; which in turn lets it retain its relevance.
The importance of the principles that guided the formation of the country are what’s most important here. It is these principles that in many ways the current libertarian movement in America wishes to bring back to life. From a minarchist perspective, a strong, principle-driven constitution like that America has is a perfect example of what we need to get back to. Setting foundational laws around the principles of freedom of the individual is core to this side of the libertarian view, and something that is timeless.
The Constitution: The Anarchist Perspective
For the anarchists in the liberty movement, there is a completely different conversation to be had.
The relevance of a set of laws here is minimal. For the anarchist, the law means little, if anything at all, as the goal is the abolition of government in its entirety. Why then would anarchists care about something like “230- plus years old” laws? The answer is that they don’t or, at least, shouldn’t.
Whether you take the natural rights approach or the “God-given” view of rights, or perhaps even Hayek’s view of rights through social evolution, there is still the consensus that one’s rights don’t come from the law. The laws of the government may be beneficial at times (such as the First or Second Amendment), but on the whole that’s not how the anarchist believes we ought to define our morality, principles, or lives.
Beneficial laws do not excuse the existence of the state which anarchists view as an unnecessary evil. People can defend themselves, take care of one another, and build and development the country better without the need of an overbearing force restricting or directing things in any capacity.
When it comes to the protections for the private citizen that the Constitution was supposed to provide, we can see from this perspective that it has failed abysmally. There are gun laws despite “shall not be infringed,” there are hate speech laws, conspiracy laws, and there even used to be blasphemy laws despite supposedly being “granted” freedom of speech by the government. And let’s not get started on how the 4th Amendment has been working out.
Every year the government, whether on the federal, state, or municipal levels, adds more and more layers to the ever more complex set of laws that govern the land. The fact that America strayed so far from the original design laid out only serves as proof that the document is worth no more than any other set of laws.
Similar to the minarchist position, however, it is the importance of the principles and morals it attempted to enforce that matters here.
The individualist ideals that the founding fathers attempted to build on are at the heart of the libertarian anarchist worldview. While there is disagreement with the concept of the state, it is those principles that guided them that guide anarchists as well. Escaping from the control, theft, and threat of force from the tyrants and kings are the backbone to everything any form of anarchist stands for.
The anarchist answer to Beto’s question is that the document means nothing, but the ideas that initially formed it mean everything.
Both minarchists and anarchists can agree here that Beto wasn’t all that far off in questioning the Constitution itself. The issue, really, was that he was questioning what the Constitution stood for, rather than the document.
The Constitution can be changed. He’s right on that part. But should it, and if so, how should be changed, are the more important questions at hand.
To the minarchist, a restoration closer to the founding principles are what’s needed. To the anarchist, a society built on that same kind of individual liberty, free from tyranny (including and especially any form of government), is what’s needed.
I can personally support doing away with the reverence for the Constitution, but if America is to protect and restore its ever-eroded freedom, then the principles for which it stands must always be defended.