Is oath to uphold Constitution honorable?
<http://constitutionalism.blogspot.com/2010/02/is-oath-to-uphold-constitution.html>
The question has been raised, essentially, "Is it honorable to take an
oath to support a constitution, not only in its present state, but
however it may be amended according to its amendment clause?" In the
case of the U.S. Constitution, Article V textually and logically allows
even for amendment of itself, such as to remove the restriction that the
Constitution may not be amended to allow for unequal representation in
the Senate, which is a continuing source of irritation to majoritarians
who think, mistakenly, that the highest political value is to be
"democratic" and that contramajoritarian provisions of a constitution
are inconsistent with that value.
This is a variant on a well-known problem in mathematical logic,
discussed in terms of "recursion", "self-referentiation", and
"non-terminating processes". It is discussed by Peter Suber in "The
Paradox of Self-Amendment in American Constitutional Law
<http://constitution.org/lrev/psuber/paradox_self-amendment.htm>",/Stanford
Literature Review/, 7, 1-2 (Spring-Fall 1990) 53-78.
But to understand it, we first have to ask, "What is a constitution"?
One way to approach the answer is to ask, "If a constitution of
government is accurately translated into another language, so that a
person adhering to it would make the same decisions, is the translation
the same constitution, or a different one?"
The most productive way to answer the second question is to say that it
is the same constitution. That is, it is the meanings, not the
language-bound text, that is the real constitution. The text is only
evidence of that constitution, just as a copy of it would be.
If it is meanings, then how might we represent them that is rigorous and
not bound to any particular natural language? The answer, with some
simplification, is that they translate into a system of /deontic/
<http://www.constitution.org/logic/ked.pdf> statements, in a normative
extension of the first order predicate calculus (FOPC), that express a
set of constraints on human behavior in the polity for which it is the
constitution.
We will establish it as a premise that to be a constitution, it has to
constrain human behavior in a way that is nontrivial, and that enables
people to cooperate in protecting their fundamental rights.
If there are no constraints on how a constitution may be amended, then a
commitment to a constitution in all the ways it could be amended would
contradict this premise, because it would be a commitment not to a set
of constraints, but to an unconstrained process that could terminate
only if the amendment clause were effectively deleted, and that could
morph into something that would not be a constitution at all.
Therefore, the amendment process must be constrained, if not by its own
terms, then by principles of sound constitutional design that are
superior to any written constitution of government. One way to conceive
of these constraints is to posit that there are superior constitutions
of nature, society, and the state, that form a hierarchy of authority,
superior to the written constitution of government. These concepts are
discussed in "Social Contract and Constitutional Republics
<http://constitution.org/soclcont.htm>".
This leads to the question, "Is the Constitution for the United States
constitutional?" That is, is it compliant with these superior
constitutions of nature, society, and the state? The answer is yes, if
we examine the language of the document and look for ways it can be
reasonably construed that are compliant. Such a construction exists, so
an oath to it understood in that way would be an honorable act. We can
recognize that the language contains ambiguities that temporized on
violations of fundamental constitutional principles for a time after
ratification. Tolerating violative practices is not a flaw in the
Constitution itself, only in the application of it. We can say that the
Constitution used to be unconstitutional as applied, in certain ways,
but may no longer be, in those ways. However, it may be in other ways.
One takes an oath, however, to the constitution and not to practices.
So to answer the original question, one can only honorably take an oath
to a constitution and its amendments that remain constrained by the
superior unwritten constitutions of nature, society, and the state,
which contain the underlying principles of sound constitutional design.
Interestingly, with the practice of binding /stare decisis/ we have a
practice that is fundamentally inconsistent with the Constitution, and
any constitution. A commitment to the present Constitution, properly
construed, is not dishonorable. But a commitment to binding /stare
decisis/ is, in all the ways that have given rise to the initial question.
As for being "democratic", if that is understood as a political order in
which majorities can always decide in support of any positive public
action, then that is in essential conflict with our constraint that the
constitution protect fundamental rights. It is one thing to prevent
positive action without majority consent, but quite another thing to
enable positive action with only majority support. In a well-designed
democratic system, majority support should be /necessary/, but not
/sufficient/, for positive public action, and structures and procedures
that enable minorities or even individuals to block action are not only
sound design, but necessary.
-- Jon
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