Constitutions as Meta-Policy

In the late 1780s, a debate raged between the Federalists and the Antifederalists on whether a bill of rights in a constitution would be sufficient, or even harmful, to individual rights. Ultimately the Federalists won and we got a bill of rights, on the condition that there be a general liberty amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
-The Ninth Amendment to the United States Constitution

Fast forward to today, and the most prevalent debate among Constitutional scholarship is between Originalism and “Living Constitution” – whether we are to look at the intent of the framers in deciding policy, or to extrapolate to modern society. But these, like meta-ideologies of “conservative” or “liberal”, do not say anything in themselves: they require an anchor. Where the latter set derives its meaning by looking at where we are and saying either “Stay here” or “Go forward”, respectively, the particular prescriptions of Originalism or Living Constitution approaches depend on the particular constitutions they are looking at. Originalism is not obviously preferable to Living Constitution when interpreting a Communist constitution, for example.

Accordingly, just as actual anchored policy beliefs (i.e., Capitalism vs. Socialism, gay marriage policy, etc.) are orthogonal to meta-policy approaches (“Do it now” vs. “Ease into it” – Conservatism and Liberalism as such are usually better described as Gradualism versus Shock Therapy, a terminology which has been unfortunately limited to post-Soviet reconstruction so far), the ideas of the relation of the constitution to modern society are less relevant than the question: what does the constitution allow? Instead of asking “what policy do we pursue” along with so many overbloated governments, a better question is “what kinds of policies are we allowed to pursue?”.

1: A Negative Meta-Policy

This is the dominant approach in almost all Western states. It says to a legislature, “if the constitution doesn’t say you can’t do it, you can”. The ninth amendment is more or less meaningless in this interpretive context: the space of action which the legislature can restrict is constrained only by the specific amendments: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…, and the rest of the bill of rights. Though there are fuzzy areas of interpretation (for example the campaign laws that Citizens United v. Federal Election Commission recently overturned), the legislature has more or less stayed clear of egregious Bill of Rights violations.

However, this has not stopped them from expanding into a whole host of regulatory and redistributionary activity since the New Deal era. There is no general presumption of individual liberty except so far as explicitly protected by the Bill of Rights. Independent regulatory agencies have proliferated, each infringing upon the liberty of some and the welfare of all. In this way, the Living Constitution approach can be roughly translated into a negative meta-policy interpretive approach: because the founders could not predict the necessity of the FCC or FAA, the argument goes, Congress may by default assume authority to regulate it.

2: A Positive Meta-Policy

A positive meta-policy, by contrast, says “unless the constitution says you can do it, you can’t”. The strongest positive meta-policy is, of course, the total abolition of the legislature. By actively preventing the encroachment of legislatures on the individual, positive meta-policy would be associated with far stronger individual liberties.

There is a strong case to be made that the United States Constitution was written as a document of positive meta-policy. A number of sufficient powers are enumerated to Congress, the Presidency, and the Courts. And as if the inference were not enough, the tenth amendment even makes explicit the constitution of the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
-The Tenth Amendment to the United States Constitution

Though the wording allows the individual states to set up regulatory and redistributionary apparatuses themselves, even this would be preferable to the nationalized system that has been accruing authority to itself by the ostensible authority of the Supremacy Clause, for the pressures of interstate competition would restrain the whimsy of the state governments in a way that the federal government is not restrained.

The failure of the United States Constitution to secure for the citizens of the United States unforeseen encroachments by its legislature should serve as an example to constitution writers: even if a document of positive meta-policy, with a severely restrained legislature, would be preferable to no legislature at all, there is the ever-present danger that the blanket restrictions will be simply ignored.