Wednesday, August 15, 2012

The Unwritten Constitution

Yale Law Professor Akhil Amar, presenting his 2007 book The Unwritten Constitution, made this claim:
The American Constitution was a unique moment in history: the first time a Constitution was voted into effect, chosen, not imposed.
Not quite true. It'd happened already in individual American states. And God, a few thousand years before that, got the Jews individually to agree to make a deal with him. The difference between the American and Jewish cases is that the Americans also participated, through their choice of representatives, in drawing up the rules they later voted individually on. Whereas God arrives with the laws ready made, and says to the Jews, here they are, take them or leave them.

It's not just that we voted in our Constitution, it's that we voted for something we made ourselves.

Our technology, our art, our words, our very bodies are tools we can constantly use in new ways, because what we do with them changes the world, and in so doing makes possible new unanticipated uses.

When the people made and agreed to their Constitution, they chose a tool, and chose to be, as the full human beings they are, the users of the tool they made. They choose to be able to use it in ways they couldn't anticipate.

Now imagine it was not the American People who chose to make a Constitution for themselves, but, like we have now making the laws a collection of associations, corporations, professions, each of which fights against the others and for its own interests.

What about that unique historical moment? Is the Constitution still a tool, a technology, an art, a body of knowledge to be used for the development of society?

Obviously not. Everything is turned around. The Constitution doesn't serve the people, but the people and the Constitution they made serve the marketplace. The market is a tool serving human purposes, but limited to a single aspect of human life, the exchange of things for sale. Giving up all control to the market all we can hope for is improvement in market efficiency, efficiency which not only blocks social development in general, closes off our future by limiting the use of the laws to the merely economic, but leads, as our own times show us, to impoverishment for most people in economic terms as well.