So, to use a real-life example, let’s take the controversy over burning the American flag. The First Amendment says that “Congress shall make no law… abridging the freedom of speech.”
Some people go out and burn US flags, and get arrested under state laws. The Supreme Court finds that those laws conflict with the First Amendment. Congress, however, has on several occasions voted overwhelmingly (though the Senate has been stopped short of a 2/3rds vote) that flag burning is not a legitimate First Amendment freedom.
So, under a libertarian constitution in the United States, how is this issue to be resolved? Is the First Amendment written too vaguely? Did the Supreme Court err in finding state laws unconstitutional, or were they right on the substance of protecting free speech? Since we know that the Supreme Court sees this issue differently than the legislature, in this example should we stand by the proposal that elected leaders are the best referees of what freedoms the people should have, even if the result would probably be viewed by some as a restriction on speech?
If there is a defect with the First Amendment, how should the clause on freedom of speech be rewritten?
Good point, Ravenman, and good question. As presented so far(and please correct me if I am mistaken), a Libertarian government doesn’t slow down interpretation of the Constitution-it just takes it out of the hands of the Supreme Court and put it in the hands of Congress. in my personal opinion, this is worse if what you want reinterpretations to slow down, because Congress is not the stablest of institutions.
Very easy answer-it all depends on who is doing the interpreting. A conservative can look at it and see clear cut rules that obviously need no interpretation, while a progressive will look at the very same document and see that obviously the framers intended that it grow when the country grows. This is one of the reasons for this thread-how can a Libertarian Constitution avoid this problem(if, indeed, it is a problem in the first place)?
Why do you say this is what would happen in a Libertarian government? It’s what Stratocaster proposed. Stratocaster speaks for himself, not Libertarians.
If the goal is convince society that Libertarianism is a goal woth pursuing, Libertarians need to decide exactly what it means, and how a Libertarian society will function. Until they decide who speaks for them, they will have to endure being defined by the generalizations of others.
Well, I can’t find out what a Libertarian Constitution would be like from Libertarians that don’t speak up, now can I? If you or anyone else would like to weigh in on the makeup of a Libertarian Constitution, no one is stopping you. Right now, though, I can only work with what I’ve gotten so far…which ain’t much.
That’s quite a bit iof oversimplifying, but close enough that you can see the answer to the OP: there is not and cannot be any such thing as a timelessly “Libertarian Constitution,” any more than there is a fixed “Conservative Constitution” or a “Liberal Constitution.”
A written document may be in more or less agreement with a given set of principles at the time of its writing, but readers that come afterwards – including lawmakers and judges – will all read it through the lens of their own ideology.
If your ideal constitution includes the phrase “all movies about baseball shall be prohibited by law,” there’s nothing stopping subsequent generations from interpreting that so broadly as to make it meaningless … a court could rule that “Moneyball” is legal because it’s really about economics, and “Bull Durham” is really a romance; or they could say that while “movies” about baseball are out of bounds, serious “films” are ok; or perhaps a politician will say the movies are prohibited by law, but simply decline to enforce the law, or a legislature will set the fine at $1. Personally, I dislike such reinterpretations and think they’re a bad idea … but they do happen, and are done by people of all political persuasions.
In a democratic society – which any libertarian one must be – there’s a limit on how much real power one group of politicians, much less one generation of voters, much much less a long-ago written document can actually have on who comes after. What the limit is and how far it can be pushed is a matter of politics, not legal principle.
Except for fringe types in basements, most libertarians know this, and spend their time trying to advance their ideas in the society they live in, instead of making up some new one.
There is plenty of information on those websites for anyone who seriously wants to learn. Unfortunately, if what you’re looking for is a lot information about “libertopia,” you’re not going to find it; it’s an irrelevant question that no serious person is going to waste time on.
Well, the reason that won’t happen is because Libertarianism is a marginal ideology held by only a few people.
People love to talk about redesigning a Libertarian society from first principles. OK, we’ll have everyone become Libertarians! Then we’ll throw out all existing social organization! Then we’ll write a Libertarian Constitution! Profit! Exept, that’s just nonsense. It’s not going to happen, that kind of thinking is just intellectual masturbation. No society ever starts at square one from first principles. No society ever starts with everyone agreeing to the princples of the new society.
In reality, we start with the existing mess of our existing social structures and muddle through. Even small changes like rewriting a country’s constitution are really really difficult. And if we had a constitutional convention tomorrow, I’ll bet you a dollar that the resulting document would be a lot less libertarian than our current constitution. We’d be lucky to avoid a declaration of Christianity as our official religion and the death penalty for disrespecting the flag.
I just gave links to the four most prominent libertarian think tanks in the country. Where on those websites is there any discussion along those lines?
Mein Gott, I didn’t realize how wrong it was to debate the libertarian vision of government when there are different kinds of libertarians, and one can google things about libertarians to boot.
If critics of the OP are really contending that this is an unfair or prejudicial debate about libertarianism, I fail to see how any topic can be debated in this forum.
I have heard the concept that the courts should be obligated to defer to the legislature bandied about often in both libertarian and conservative circles. It is a perfectly good issue to examine and argue about. If one poster who claims to be a libertarian has a view that other libertarians disagree with, then chime in and say why that first poster is wrong - don’t get up in arms that libertarians as a whole are being attacked unfairly by discussing this issue. Fundamentally, this debate is about the role of the courts and the legislature in an alternate government system, not a ad hominem attack on libertarians everywhere.
For example, I would still like to see a substantive response to the First Amendment issue I raised earlier. I am curious what others would say, whether they are libertarians or conservatives, on how they think the government would work if courts have their roles limited.
Yes, I’ve heard conservatives talking about how courts should be subservient to legislatures. So does that mean this is a conservative view, just because some conservatives believe it?
The problem here is that we have two principles in conflict. One, is that the rights of the individual shouldn’t be taken away just because a majority thinks they should. The other is that governments derive their powers from the consent of the governed, and unreviewable actions by unelected officials are unjust.
So which is the Libertarian position? Is the court, in declaring such and such an action unconstitutional acting according to Libertarian principles by protecting the individual, or against Libertarian principles because how can one person’s decision be binding on the rest of us? Of course, it could be either, or both, or neither.
Officials who are accountable to the public–elected officials–have the inherent flaw of bowing to popular will even when the people are being idiots. Officials who aren’t accountable to the public have the inherent flaw of being able to do whatever they hell they want and fuck the public. There is no magical way to resolve this conflict by rules or constitutions. A constitution is only as good as the society behind the constitution. The communist dictatorships of the Eastern Bloc all had perfectly fine constitutions that guaranteed human rights for everyone. Except the constitutions were wastepaper because the real power was held by the communist party and the people were slaves.
Supremacy of the legislature over the courts doesn’t seem to me like it would lead to particularly libertarian outcomes, unless the legislature was composed of libertarians elected by a libertarian voting public.
I’m not sure why anyone should care about the question, or the answer to the question. It’s completely irrelevant to the substance of the debate.
I agree totally. I’m still curious what someone who proposes limiting or eliminating judiciary review would say about the First Amendment issue I raised earlier.
Except that “personal liberties” is a somewhat ambiguous concept, and simply will not do as specific legal terminology. Because it provides no grounds to determine whether action X, considered highly objectionable and intolerable by many or most, has “personal liberty” protection or not. Anything you do without immediate compulsion is an exercise of your “personal liberty,” after all.
This is where you’re wrong. It seems that by definition, a debate involving libertarianism is an ad hominem attack on libertarians, this one is even more blatant that normal.
You can’t use reason to argue a person away from a position they didn’t use reason to arrive at.