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I'll Take My Constitution Good and Dead, Thank You

I take serious issue with people who claim we should view our Constitution as a “living” document, e.g., one that must be interpreted afresh from time to time because the plain or obviously intended meaning of its provisions may no longer be “relevant” to modernity. 

My problem with that line of thinking is fairly straightforward, and really has nothing to do with any sort of reverent fealty to the document. Which isn’t to say I have no reverence or fealty to it, but that it’s neither perfect nor perfectable, as nothing devised by fallible human beings can ever be. But neither is it anywhere near as imperfect as those who breezily dismiss it as an antiquated charter more suited to a low-density, agrarian society would have us believe. Those who habitually overstate how “different” things are today, and maintain a dogged, if mostly unexamined insistence that the passage of a shade over two centuries has wrought such profound and lasting change to the fiber of the republic as to anachronise the document that produced its essential structure lack a grasp of human nature anywhere near so firm as that of the framers. The wisdom underlying our Constitution is as forceful and relevant now as always. Our charter acknowledges eternal human shortcomings and the need to limit government power accordingly. It was written by men educated in the classics and well-versed in the philosophical and metaphysical conundra perennially inherent to the human condition. In the broad sense, our Constitution is remarkably well-founded and wisely and adroitly conceived. This is why it has endured, and why those who would dismiss it merely for something as irrelevant as its age exhibit little depth of understanding of its great and lasting strengths. Times change. Technology and demographics change. Human beings . . . not so much.

My issue with those who would discard or modify it frequently to suit what they perceive as changing times is that we already have–and always have had–a “living” Constitution, just not in the way they mean it. From its inception, it has been amendable if the body politic sufficiently wishes it to be so. There’s a perfectly unambiguous process set forth in Article V that spells out just how to do this. Amendments to the Constitution must be ratified by two thirds of the Senate and House, then by two thirds of state legislatures. 

Yes, this is a major undertaking–by design. Lives, fortunes, the dispositions of vast resources, how we define basic human rights and other implications too broad and numerous to list depend upon constancy in constitutional jurisprudence. It should never be amended for light or frivolous reasons, or moved in some direction or other by passing whims and fancies (as is done with quite ridiculous frequency to many state constitutions, such as Oregon’s). Still, the thing is far from impossible, given that in the 226-year history of the republic, it’s been done 18 times (there are 27 amendments, but the first 10–the Bill of Rights–were ratified all in one clatter). Not only is it not impossible, there have been periods in our history (1865-70, 1913-33, 1961-71) when it happened quite frequently. 

But most proponents of the “living” Constitution idea aren’t referring to this slow, deliberative, prudent process that ensures the overwhelming majority of citizens are solidly on board, and that a change so important as to call for amendment is more persistent than ethereal. Rather, they prefer to short-circuit the prescribed process by substituting the judgment of a very small number of elite lawyers in black robes for that of a supermajority of citizens and their elected representatives. It’s particularly ironic that the same people who place such sycophantic faith in unelected oligarchs to make the right decisions about what our Constitution “ought” to mean–particularly if their desired interpretation differs either from the obvious intent of the framers or English intelligently read–are, in other contexts, the first (and loudest) to scream about “elitism” and this or that policy being counter-majoritarian. 

They are also, of course, the same people who would tout something like Obamacare as the “settled law of the land” five minutes after its enactment, yet treat the 226-year-old Constitution as infinitely malleable. The whims of such unstable personalities can admittedly be challenging to keep up with.

“(A)rmed with an undisciplined mind, (I) focused only on attracting girls through the romantic pull of earnest, self-elevating liberalism.  I believed in stupid things, but only because those stupid things attracted stupid girls.  I call this the stupid loop.  And it’s what drives all young men into brief affairs with liberalism.  As well as acquiring Kanji tribal tattoos and urinary tract infections.”
–Greg Gutfeld (describing himself as a “confused freshman at Cal”)



The Chip Dock Anecdote

Yesterday I breakfasted with a friend who manages a dock facility which loads wood chips onto large vessels for trans-Pacific export. He related to me the following true anecdote of their recent dealings with some bit players in what has, over time, metastasized into the current colossus of officialdom of the once-great State of Oregon. It all started with a random visit from a water quality bureaucrat, whom we’ll call “Mr. River,” who noted—with the overblown alarm typical of the lesser martinets of environmental enforcement whose subject matter jurisdiction tends to be exceedingly narrow and of a significance entirely incommensurate with their excessive power—that there were no structures or procedures in place to stop any spilled chips near the edge of the dock from ending up in the river. None actually had, mind you, but they might just. Hence a feature that had gone unnoticed for decades instantly attained the significance of nuclear brinkmanship. Left unexplained were a couple of matters I may have pressed had I been present, such as how 100% natural wood chips made from the same trees that naturally occur along its banks would, by falling into the river and floating to the Pacific, threaten water quality. Doesn’t wood fall into the river every day, eventually becoming the driftwood the very hippies who empower chuckleheads like Mr. River use for sculpting objects d’arses? Nor would it have likely occurred to this pointless occupant of otherwise valuable space that, inasmuch as the dock operators own the chips they’re loading onto vessels, they already have every conceivable incentive to prevent as much of this valuable commodity as possible from being lost to the river.

No matter, for preventative measures needed to be taken to address this heretofore undiscovered problem of earth-shattering gravitas. So a construction crew spent an entire weekend, at considerable overtime expense, affixing sheets of plywood to the end of the dock to catch any wood chips that might otherwise end up turning the river into a the next Chernobyl. This averted the crisis to the satisfaction of Mr River.

Not, however, to the satisfaction of the fisheries bureaucrat, “Mr. Fish,” who turned up some weeks later and asked the facility manager—ever so politely—if he’d obtained the required permitting for the plywood chip-catcher contrivance. “A permit for what, exactly?” the manager asked in earnest.

“Well, technically that’s an extension of your dock, which requires a permit because you’ve increased the amount of shaded area over the water. That concerns fisheries because increased shaded area gives predatory fish a larger place to lurk in wait of prey fish swimming by, which they ambush,” replied Mr. Fish.

The manager assured Mr. Fish he’d set upon the permitting process in the instant, but that just wouldn’t do. No, Mr. Fish insisted—albeit, again, ever so politely—he would need to tear out the plywood in the interim because the continued existence of the unsanctioned dock extension was actually a criminal offense that could result in the assessment of fines and even possible jail time for the dangerous malefactors responsible were it not immediately remedied, no matter that it would ultimately be permitted without too much hassle or delay (at least by government standards). When the manager protested that it had been costly to install, would be costlier still to remove and reinstall, and that the whole exercise was in any case undertaken at the insistence of yet another state official, Mr. Fish scratched his head thoughtfully and at length determined that perhaps the installation of electric lights under the dock might serve as adequate mitigation.

As my friend related the story, I felt myself transforming into one great varicose vein, as is my propensity upon being regaled with such tales. These are common conversational fodder among people in my circle—those who actually do or make things for a living, and who are interminably pestered by the regulatory state for having the effrontery to employ people, contribute meaningfully to the economy and otherwise serve a generally useful purpose. My facial tick kicked into high gear as cold fury set in at the thought of self-important, overblown clerks unfit to manage a corner taco stand arbitrarily pushing around productively occupied men of industry and substance in futile desperation to justify the former’s existence. Yet on reflection the story emerges as a teachable moment on at least a couple of particulars, to wit:

1. You WILL go through the proper channels.  At English common law, which formed the basis for the Anglo-American common law for the first 150-odd years of the nation’s existence, there were very few behaviors legally recognized as crimes. These included a handful of felonies—crimes punishable by more than a year of imprisonment—such as murder, rape, burglary, arson, treason and the like, and a scattering of misdemeanors, these being crimes punishable by a term of imprisonment of not more than a year. Moreover, virtually all crimes were of the malum in se variety—actions prohibited and punishable because they were inherently wrong, as compared to malum prohibitum—things which are punishable not because they are necessarily wrong, but merely because they are prohibited. The mania to make laws more statutory and to grow the regulatory state begat an explosive growth in malum prohibitum proscriptions beginning around the New Deal era and exploding in the 1960s and 70s. Hence one now often hears libertarian types like me grousing about how it is possible in this age to quite inadvertently commit a half-dozen felonies before lunch in a given day.

An interesting offshoot of malum prohibitum mania has been the evolution of a new, hybrid category of offense which, since it doesn’t yet have a name, I’ll here dub malum prohibitum sine patior—actions which are neither inherently bad nor prohibited, but for which a permit is required and there shall be hell to pay and no pitch hot if it isn’t obtained. My Latin is all of a piece with my Serbo-Croatian, so it’ll have to do until someone straightens me out. It is here that the true Orwellian malarkey goes into warp drive. Never was it even implied in the least, for instance, that the chip dock operators would be denied the ultimate ability to affix the plywood to their privately owned dock that is attached to privately owned real estate. They just failed to secure the proper permit, and some vacuous dullard somewhere had actually adjudged failing to obtain a permit for something (1) not even prohibited, and (2) for which most people of ordinary knowledge and experience would not even realize a permit was required, to be a serious enough breach to warrant criminal liability.

As I listened to my chip dock friend with murder blazing deep within my soul, I was taken back to another anecdote—which I will recount here in a purely factual manner absolutely devoid of hyperbole—of some years earlier involving another friend who had foolishly endeavored to drain a pond without first performing the obligatory monkey dance for his Sovereign Lords. The pond, mind you, was 100% man-made, and 100% contained within the boundaries of his privately owned property. One day he decided that there might be a higher and better use for the land occupied by the pond than a place of happy fornication for mosquitos and ditch carp and for trespassing local anglers to deposit litter, so he set about draining it. No sooner had it been drained than the local environmental enforcement commissars caught wind of the project and insisted that he needed a permit to do it. When he pointed out that the pond was already drained and asked whether he could be issued a permit that would apply retroactively, they looked at him as though he’d told them he just finished a delightful lunch of boiled baby and declared that, no, he would first be required to refill the pond, then obtain the necessary permit before he would be allowed to drain it again. By now, dear reader, you’ll probably be less than shocked to learn that a separate permit would also be required to refill the pond, which actually proved more difficult still to obtain than a drain permit. All of these things he ultimately did, although it must have taken a heavy dose of elephant tranquilizers to restrain him from gutting and decapitating the officials where they stood.

Implicit, of course, in the very notion of private property is the ability to do what one wishes with it so long as one does not unreasonably interfere with others’ use and enjoyment of theirs. Refraining from creating a “nuisance” to neighbors was the only requirement of private property owners at common law, before the juggernaut of environmental regulations descended upon us all. Hence in what has been, depending how one looks at it, 239 years (since the Declaration) or 226 years (since ratification of the Constitution) of this nation’s existence, we’ve come full circle back to private property existing only nominally, and at the sufferance of the sovereign, rather than being an unalienable right affirmed in multiple clauses of our Constitution.

2.  Officials of the regulatory state are utterly ignorant of economics, don’t know the first thing about cost/benefit analyses or the balancing of harms, and wouldn’t care a damn even if they did. Another thing that sets us libertarians to grumbling is the cost—largely hidden—of the regulatory state, and this anecdote serves as a small yet useful illustration. There have been voluminous studies and articles produced these past couple of decades attempting to pin down this cost—Google “regulation cost to United States economy” or similar query language and you’ll get a list as long as your arm. Suffice it to say it’s enormous, usually starting off around $100 billion per annum and, depending upon the metrics and variables analyzed, often doubling that. For obvious reasons, it’s not something altogether easy to track, since costs of the sort imposed at the whim of the Mr. Fishes and Mr. Rivers of the world as a result of their random drop-in visits aren’t recorded in any central database.

Regardless of the exact manner in which these regulatory costs are imposed, the common thread is the lack of any sort of requirement on the part of regulators—particularly those operating at ground level as compliance officers—to conduct a cost/benefit analysis, determine the best balance of harms (or make an evidence-based establishment of whether any harm is, in fact, occurring in the first place) or to in any other way take the economics of their often random and at times entirely unpredictable mandates into account. In an inversion of the ordinary dealings between state and citizen, the onus will be on the regulated party to prove the regulator is out of bounds. You will either incur the cost to comply, or incur great expense challenging their edicts, which challenge will likely fail as a result of mechanisms built into the various adjudicatory processes that stress “deference” to the “experts” employed by regulatory agencies in any grey area. And the greyness tends to be far more vast than the standards that are specific and quantifiable. The imposition of costs which must, after all, be borne using real money based solely on a compliance officer’s say so, and without any prior determination of liability through the sort of structured procedure designed to sort out such things, should strike anyone critically examining the situation as essentially the deprivation of property—money—without anything resembling due process. The Fifth and Fourteenth Amendments are now toothless tigers, at least where the cost of regulatory compliance is concerned.

In the present case, Mr. River demanded the construction of a costly (and apparently illegal) structure based on the possibility that chips might fall into the river, and was able to coerce compliance without producing any sort of proof that any had, that harm would have resulted even if they had, and certainly without any requirement that he consider the cost. Mr. Fish was likewise able to require the chip terminal operators to expensively chase their tails without producing any sort of proof that a few square feet of extra shade over a river nearly a quarter mile wide would have any measurable effect on fish, or that prey fish haven’t figured out how to steer wide of shaded areas. All sorts of costs, zero due process.

Short of violent insurrection, I should think tarring and feathering a few Mr. Fishes and Mr. Rivers is long past due. It shouldn’t take much more than a handful of these for the rest of them to get the message—at least for a while.


“Demands for greater or complete equality seem to have other sources. Boredom plays a role here as well. It is impossible, for example, to observe radical feminists without thinking that their assertions of oppression and victimization, their never-ending search for fresh grievances, are ways of giving meaning to lives that would otherwise seem sterile to them. Self pity and envy are also undoubtedly factors, as are prestige and financial support to be had from pressing their claims, but I tend to think that the search for meaning plays a prominant and perhaps predominant role in many forms of radical egalitarianism." 
 - Robert H. Bork

Inequality Bed-Wetters

"(T)he Left does not generally make that straightforward argument for seizing property. Rather, they treat “inequality” as though it were an active roaming malice on the economic landscape, and argue that incomes are stagnant at the lower end of the range because too great a “share of national income” — and there’s a whole Burkina Faso’s worth of illiteracy in that phrase — went to earners at the top. It simply is not the case that if Lloyd Blankfein makes a hundred grand less next year, then there’s $100,000 sitting on shelf somewhere waiting to become part of some unemployed guy in Toledo’s “share of the national income.” Income isn’t a bag of jellybeans that gets passed around."