Tuesday, May 15, 2012

Constitutional Historicism

On Ricochet Fred Cole poses a question to readers, asking what they would change about the Constitution if they could rewrite it in 2012.  I found this part of his post cringe-worthy:

Our Constitution was written in 1787, in a three-mile-per-hour world. It was pre-Freud, pre-Darwin, pre-Einstein, pre-germ theory, pre-atomic theory. It reflects the values and the times that produced it. 

So because the Founders didn't know about future technological advances, that somehow makes their ideas and principles less true today than they were in 1776 (or 1787)?  But that cuts out the ground under Fred as well.  He is just as susceptible to charges that will be made by someone 100 years in the future that will invalidate whatever changes he proposes today.

I seem to remember that around those times, the Founders also produced that memorable line about the self-evident truth that all men are created equal and that they have certain inalienable rights, among those being life, liberty, and the pursuit of happiness.  Is it less true today that all mankind is imbued with certain natural rights, that were given not from the government but from the Creator?  Or that the Constitution is built on the metaphysical structure of the insights into the permanent truths of the Declaration?  I guess for Fred, the fact of Lady Gaga and Spam somehow invalidates all of this.

Fred should consider Hamilton's lesson in the opening paragraph of Federalist 31:

IN DISQUISITIONS of every kind there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. Where it produces not this effect, it must proceed either from some disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice. Of this nature are the maxims in geometry that the whole is greater than its part; that things equal to the same are equal to one another; that two straight lines cannot enclose a space; and that all right angles are equal to each other. Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation. And there are other truths in the two latter sciences which, if they cannot pretend to rank in the class of axioms, are yet such direct inferences from them, and so obvious in themselves, and so agreeable to the natural and unsophisticated dictates of common sense that they challenge the assent of a sound and unbiased mind with a degree of force and conviction almost equally irresistible.

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