I wrote interpreting the constitution, but I guess clarifying the constitution would be closer to what you intended. I didn’t mean to put words in your mouth there.
So it seems to me that if a new constitution used phrases like, “due process” or “unreasonable search,” it would be up to the courts to point out that they could not apply a fair ruling based on such language, right? So if the courts point were to point out that the Fourth and Fourteenth Amendments did not provide them with sufficient guidance to apply the law, it would be up to the legislature to do what… pass a law that directs how those phrases are to be clarified? Or pass a constitutional amendment? Should there still be a more difficult process to amend a constitution than to pass a law, in your view?
You’re welcome! Ideally, I’d like things like “due process” at least broadly defined. It could be as simple as “Due process shall include representation by an attorney, prompt hearings, judicial oversight of arrest warrants, etc., etc.” I know in our society that’s tilting at windmills. But in Libertopia, I would say a court opining on the sufficiency of a particular application of due process has zero guidance from the legislature and would point out that deficiency in the law. I suppose that would have the effect that ANY due process provided would be deemed sufficient, so long as it wasn’t clearly just window dressing. But if we want the constitution to provide clear direction, it needs to provide clear direction.
And I’m okay with a term so universally understood (perhaps “due process” is one–I’m no lawyer) that an interpretation of it is not much of an interpretation at all. All words must be interpreted to some extent.
Here’s the two problems I see with this view. First is that the record is fairly clear that the courts have been the branch of government most willing to interpret vagueness in the Constitution to allow addressing of the most serious social ills: racism, sexism, free speech, and so on. I would think that allowing courts the ability to interpret vagueness into freedom would be a positive thing for libertarians… as opposed to encouraging courts to turn to the legislature for more refined guidance.
Secondly, there are inevitably situations that we just never thought of before that will stress our understanding of the law. Take the killing of Anwar al-Awlaki, for example – was he afforded due process? Does due process apply during a time of war? Does the whole world come to a stop while waiting for politicians to figure out enough compromises to establish a government position on such matters? I think the court system is already too slow, and to have justice depend on the schedule and willingness of popularly elected people… well, I think that’s putting a lot of faith in the electoral process to truly believe that politicians will more often than not stand up for the unpopular, but correct decisions.
And this is coming from me – the guy who tends to defend elected leaders by saying they are better people than they are usually given credit for.
Libertarians don’t consider racism or sexism, in the private sphere, as antithetical to liberty. On the contrary, libertarians typically agree that private governments should be free of racism and sexism, but private individuals should be free to be racist and to conduct their affairs in a racist manner as long as they are not causing physical harm to others. You won’t find many libertarians who would favor Affirmative Action or the idea that the government could tell you who you could do business with or not.
Libertarians would generally be appalled at the idea that the government, in war or peace, could target a citizen for killing at the behest of the executive branch.