After every controversial political action, debates will break out on whether it was in accord with the Constitution. The discussion boils down to a catch-22 Lysander Spooner already detected 150 years ago: “Constitution has either authorized such a government as we have had, or has been powerless to prevent it.” What usually remains unexamined is how the question of constitutionality ends up in paradox.
The moment a new government is elected, it will define through legislature what ‘minimal’ is. In the US after ObamaCare, federal health insurance is part of the minimal ‘services’ provided by the state, yet food is considered perfectly safe in private hands. In Venezuela the government is in charge of utilities and food supply, experiencing catastrophic shortages in both. In North Korea, the minimal state consists of a government that is in charge of every aspect of human life and death. Because there is no fixed definition of minimality, the reality is that a minimal state is whichever size state the government creates.
To better understand this process, let’s assume we agree on “a monopoly on the exercise of violence over a given geographic area” as a minimal attribute of a state. If a state has a monopoly on force, it will need an army to enforce that monopoly. How big should that army be? 100, 1.000 or 100.000 soldiers? How much weaponry should it have? As many weapons as it has citizens? As many as its neighboring countries? As the world? What about possible other worlds, what if the earth is attacked by aliens? Will it need nuclear weapons? Will it need enough nuclear weapons to blow up the world five or fifty times over? How do we determine who gets to use those weapons?
Minarchists have a habit of defending the nuclear bombing of Hiroshima and Nagasaki and even Dresden as ‘necessary’ to ‘end the war’. Given that ‘necessary’ can be substituted for ‘minimal’ in this context — since a minimal state would not exercise unnecessary force — we get the exact same vagueness-induced paradoxality that plagues the minimal state.
Had the US killed 100.000 fewer Japanese civilians in Hiroshima, would the war not have ended? What if the Nagasaki schoolkids were on a trip to Tokyo that day? How do you know you’re not mistaking ruthless cruelty for rationality and collective punishment for moral justice because you have no definition of what constitutes minimality at all?
Claiming necessity implies that if the US hadn’t bombed Nagasaki the war would not have ended. The question is how they know this. The only way they could claim minimality, is if they examined all possible scenario’s and weighed them against each other. We can be fairly certain they didn't. Which leaves us with the conclusion that the only reason to accept those military actions were minimal is that you already believe them to be minimal. What remains is circular reasoning: ‘whatever the US did is necessary, because the US did it’.
The reason for this descent into mind-curling haziness is that there is no rule or concept that determines its own scope and meaning. What this means is that the rules or laws themselves do not tell us how we should implement them. Constitutional fundamentalists who say ‘it clearly says right here’ or claim that ‘the founding fathers obviously meant this’, are not offering anything more than their interpretation against the one that is used by government officials. When the authorities want to impose unwarranted searches on American citizens, they’ll just readjust the definition of unwarranted. Don’t want to go the FBI route with pesky court ordered warrants? “If the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a ‘search’.” Problem solved.
Even in a state founded on the most minimal of rules and principles we can think of, a law is never ‘final’. Laws govern reality and reality is ever changing. What is hard to determine and infinitely harder to challenge, is which changes are the natural result of a changing society and which ones are changed to fit a sinister political agenda. Unless someone blows the whistle and federal judges take serious offense, government agencies get to stretch the Constitution pretty thin. While this might drive constitutionalists crazy, and rightly so, it is a completely predictable consequence of the ambiguity of constitutional text, the dynamic nature of law and the monopoly on force held by the persons and institutions interpreting it.
Might does make right when it comes to interpreting the law. Laws are not primarily tested against the real world, or even against the Constitution, but rather against the consensus of the judicial community itself. How other judges have interpreted a law becomes part of the meaning of that law by jurisprudence. That presidents get to pick those judges whose interpretation of the Constitution aligns with their own undoubtedly helps steer that meaning in the preferred direction. Before appointing a Supreme Court justice “White House staff […] go through published rulings, articles, speeches, and other background material to get an idea of candidates’ values and views on constitutional issues.” Since every judge interprets the rules slightly differently, the law will inevitably change. At some point beyond recognition of its original meaning. Not this inevitable change of meaning itself, but who is in charge of changing it is the question that concerns liberty.
Constitutionalists and I can agree that individual rights would be much safer if Ron Paul or Andrew Napolitano were in charge of interpreting the Constitution. But isn’t the point of a Constitution to protect those rights regardless of who decides on their implementation? And if that is the case, aren’t we back where we started, asking what good the Constitution is if it can not prevent the proliferation of government? We know the minimal state lies somewhere between anarchy and dictatorship but nobody knows exactly where.
The crucial question is not which interpretation of the Constitution is ‘correct’, but which interpretation is implemented. Implementation is the domain of the monopoly to rule all others: the monopoly on force. Whichever party possesses this most scarce of goods gets to set the parameters of legal correctness. A belief in constitutional truth divorced from political reality misses the point of both the inherent ambiguity of natural text and the monopoly that is decisive in determining what is fact and what is apocryphal in matters of law. A government-granted monopoly on interpretation is the reason there can be no such thing as a ‘minimal state’ as constitutionalists understand it.
Instead of working against the dynamic nature of law, continuously and aimlessly trying to fixate the meaning of rules never meant to be immutable, we should try working with it. According to Johann Gevers, decentralized law is one of the four pillars of a decentralized society. In the foreseeable future enforcing contracts will be more a matter of code than of court. Instead of granting a small group of judges the power of both word and sword, the tools to let the community decide on the meaning and implementation of justice are on the horizon. Soon there will be no reason other than tradition why a judge has to be one person instead of many.
Individual liberty is incompatible with being forced to obey other people’s interpretations of the laws that govern your life. The essence of liberty is to determine for yourself what you can and cannot do with your life, your body, your property. To guarantee this freedom it is not enough to have it written down somewhere and let others decide on its meaning. It is self-refuting to be forced to agree with how your liberties are protected. To further individual liberty, we need a more radical separation and decentralization of power than even the Founding Fathers envisioned. Taking for granted that others are in charge of pruning the tree of liberty is an idea that may very well have had its day.