Applying the Constitution
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Overview
The Constitution is a number of things. It is a artifact with significant cultural and social meaning. It is a formal legal document. It is the ultimate foundation of all law in the US. It is a philosophical statement.
Context
Objective History
There's this pervasive idea that "if the if people would just accept the facts", we'd all agree. But as Joe Friday never said, "Just the facts ma'am" can be a slippery idea. The problem is that "facts" have more of a rhetorical technique than a enumeration of generally agreed upon, objective and verifiable claims.
Most Constitutional history falls outside the bounds of objective historical facts and is actually cultural narrative. What Jefferson wanted or Adams intended, for instance, is outside the bounds of fact. Even when we have there own word, there's no proof that they were not lying, or that they hadn't changed their minds.
This isn't to say that we should throw up or hands and I certainly don't believe that anything goes. I believe we should debate whether a particular narrative is reasonable or useful. The point is that to have useful discussions, we need to separate, in our own minds the rhetoric from opinion, and opinion from fact. When we do so, I believe we will find a lot of rhetoric, a good deal of opinion, and very little actual fact.
In my opinion, this is largely a result of facts being hard. If I say "50% of Americans are Republicans" is that a factual statement? First off, is it true? Probably not. But let's assume 50% is the right number. So in 10 years, it's a different number and I no longer have a fact. Does that mean if it's not a fact now, it could become a fact? So that means that a fact really should read "In 2010, 50% of Americans Republicans were Republicans."
But what about "Republicans?" Do I mean self-identified as Republican? Members of the Republican party? People whom I consider to be Republican because of some policy preferences? All these are valid uses of the term, but would have drastically different compositions. For that matter, what do I mean by Americans? You may think I mean "US citizens", but what about people living in this country? Now consider that most people in the world would consider "American" to refer to any person living on either the North or South American continents.
Now if we agree that the question "What percentage of Americans are Republicans?" is a pretty straightforward, and yet depending on how you combine the above interpretations anything from 1% to 99% is actually a valid answer then maybe we agree there's a problem. Even if you feel "it's not quite that bad", perhaps we can at least agree objective fact is not entirely straightforward either.
Certainly there are objective facts regarding how the Constitution came into being and who where the agents of that change. But beyond that, there's not much fact. There may be broad consensus on some points, but even widely held opinions are not fact.
Fact is Not Truth
Fact is not truth. For instance, "there is a god" may be true, but it is not verifiable. Notice that this applies to the negation as well; it may also be true but is equally unverifiable that "there is no god". Because these claims are not verifiable, both atheist and believe alike love to hurl, "But you don't know!" at the other side, which I always find deliciously amusing because it's an accusation that necessarily applies equally as strongly to their own state of being.
Facts may be a part of truth, but truth itself is a much broader affair. Indeed, truths may even contradict the facts. "We hold these truths to be self evident" is not followed by a recitation of facts, but by a statement of belief. The very next line goes to my earlier statement of truth contradicting fact for it is certain that "not all men are created equal", and yet it is noble and correct that we hold such an idea to be a truth.
Culture and the Constitution
We can look at culture as a collection of shared beliefs about what is true and good in the world.[notes 1] This is a positivist view of culture, but I believe it's a fairly useful definition.
If we were to speak about a common US culture, it may be that we all like the idea of a constitution. It's quite interesting that despite significant difference in political stance, the Constitution is so central to everyone's political thinking.[notes 2]
What else can we throw into this mix? Certainly very little about what the constitution means can be included in this common culture. The Constitution is important to most of the cultures within the US, but we really have to talk about many distinct cultures.
The fact that--depending on your point of view--all these cultures seek to either adhere to or co-opt the Constitution means that to understand the constitution, we have to see it through the a lens of culture and rhetoric and understand that most of the arguments are not arguments of fact, but statements of culture. To some extent, these statements are guided and inspired by the constitution. To some extent, the statements attempt to co-opt and change the Constitution. The fact that they involve the Constitution is pertinent, but does not change the nature of the statements as proclamations of cultural belief.
Law
Legal Interpretation
Cultural guide vs. legal theory.
- formalism - legal positivist - spirit
What can we demand? Consistency.
Originalism Revolutionary Mindset
Summary
Equivalent models.
Notes
- ↑ This question of truth and goodness is actually much more interesting than the question of what is fact and opinion which is why I find it amusing that so many are so quick to label their opinions as fact when facts are for the most part such dull and uninteresting things.
- ↑ Maybe this is because we actually agree more than we disagree, but in a relative sense, it's always the disagreements that matter and I think it is safe to say that very few disagree about the inherent goodness of Constitution--just what that goodness means.
