Constitutions and Constitionalism

A libertarian viewpoint

constitutions  In ^*political terms, these are the conventions, procedures, and rules—written or unwritten—that ostensibly regulate the actions of ^*states. Constitutions are supposed to be above, and limit, the vicissitudes of everyday politics—but this is never fully achieved. And to the extent that it is not, they are constitutions in name only.

Contra one popular view, there is nothing inherently ^*democratic (fortunately) or ^*classical liberal/^*libertarian (unfortunately) about constitutions. There is possibly some slight empirical tendency to restrain the state’s more extreme illiberal/unlibertarian activities once a constitution is in place. But putting a new constitution in place can have the opposite effect (as with the ^*European Union’s constitution in effect trumping that of the more liberal United Kingdom’s).

^*Anarcho-libertarians would, ideally, not want any political constitution, as that would mean having a state. Both they and ^*minarchists ought to be more concerned with what any constitution ought to be (protective of ^*liberty) and not what it, in fact, is—except insofar as arguments and ^*propaganda about unconstitutionality are realistically likely to limit unlibertarian state action. There is a tendency among some American libertarians to discuss the U.S. constitution and its framers’ intentions ad nauseam as though these were ^*legitimate and their implications ipso facto libertarian.

constitutionalism  The theory or principle of a ^*state having a ^*constitution, usually significantly written but also including unwritten conventions, procedures, and rules. Constitutionalism is sometimes held to be synonymous with the ^*rule of law (in the ^*corrupt ^*statist sense, at least). Today constitutionalism usually includes the idea that this can significantly constrain a state from abusing its ^*power. There is limited evidence that this is so. The U.S. constitution is a good case in point. It is relatively ^*classical liberal/^*libertarian in most of the clear restraints it places on the ^*federal government (although it was not until 1865 that the Thirteenth Amendment abolished ^*slavery and involuntary servitude; yet not ^*conscription and ^*jury service). But even these restraints have often been reinterpreted or set aside since its inception. This is not to deny that a constitution can on balance be some force for good. Although there is also the problem that a constitution might be inherently biased toward a large ^*welfare-^*warfare state, as is more than likely today unless libertarians draw up the constitution. The ^*social system ultimately rests on ^*public ^*opinion (see ^*libertarian culture). Only by the general and continuing acceptance of libertarian ideas can ^*liberty be made relatively secure.

(These are entries from A LIBERTARIAN DICTIONARY: Explaining a Philosophical Theory [draft currently being revised]. Asterisks indicate other entries.)