I Want It All

Occasionally, I hear people make arguments in favor of constitutional rights claims by arguing that the Constitution was set up to protect liberty. And it most certainly was—in part.

But I think that it's a mistake to treat this as a goal above all others, as the Preamble to the Constitution itself reflects (and of course the specific provisions within the text of the Constitution and the Amendments—which are part of the Constitution—do as well):

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Constitution was set up to do many things at once, and I want them all. I would like our government to provide for justice, and protect domestic tranquility, and defend us against our enemies, and make the country wealthier, and protect liberty.

To be sure, these interests are sometimes in tension: For instance, national defense will often undermine liberty to some extent, and liberty will often undermine national defense. On the other hand, the interests often go together: For instance, liberty will generally produce more economic growth, and wealthier countries also generally find it easier to defend themselves. In any event, the Constitution sets up our federal government to try to secure all these benefits, rather than to categorically prioritize one (whether liberty or national security or the general welfare) above the others.

And that's what I want, too. I love liberty, including freedom from oppression by my own government.

But I also want freedom from oppression by foreign governments (which requires an effective "common defence"), freedom from oppression by violent factions within our country (which requires protection for "domestic Tranquility"), and freedom from oppression by criminals and criminal gangs (which requires "establish[ing] Justice").

I also want more "general Welfare." First, that generally translates into more wealth, health, and opportunity for me, and therefore practical liberty for me to pursue the things I value. The concept of "freedom from want" can be overstated, but it captures an important point, and "freedom of opportunity" means more than just freedom from restraints on opportunity imposed by American governments. Second, providing the same things for other Americans tends to make it easier to prevent foreign oppression and violent revolution. And an effective Union of the states generally tends to promote these values as well.

Again, one should always watch for the ever-present risk that pursuing some of these goals may unduly undermine other goals. One should also watch for perverse consequences, for instance when attempts to promote the general welfare or the common defense actually undermine these very values.

And of course there's always the possibility that the Preamble's plan is mistaken, and that we should categorically reject one or another of these goals. For instance, perhaps a government should be categorically denied the power to act simply to "promote the general Welfare," and should leave such promotion entirely to the nongovernmental actions of free and well-defended private individuals. Or perhaps the federal government should be denied some of these powers, and any governmental action to protect them should be at the state level. Or perhaps these values are better served by a looser Union, or no Union at all, than by the tighter Union that the Constitution created.

But at least until someone shows me a better plan, I'd be inclined to see our country stick with this one. And that is a plan that seeks to serve many goals at once, including securing the blessings of liberty, rather than just one goal.

Comments

[JoeFromtheBronx]

You smiled at me, you said load up your plate
Dare to be great, oh go for the gold
It's worth the wait, well you're made to see
Yay, I should dress for success, get lots of rest
Budget my time and look my best
When I can have it all, can have it all, can have it all.

https://www.youtube.com/watch?v=xEx6VKiMles

[ReaderY]

One of the criticisms of rational basis review, and of laws by their critics, is that they don’t perfectly pursue the goals they were aimed at and tend to have limitations and exceptions. But these limitations and exceptions are often necessary to balance them against other goals.

A classic example is a speed limit. Perfect liberty would abolish speed limits completely. Perfect safety would ban automobiles entirely as inherently unsafe. So any speed limit is always a compromise between these two conflicting goals, a balance between liberty and safety. Since both goals are themselves rational, any compromise between them is rational. Different situations, and people with different values, will weigh these goals differently and strike a balance in a different place. Anywhere on the spectrum is rational. In general, if two conflicting goals are rational, any compromise between them is always also rational.

Almost all legislation works like that. It’s not possible to have it all. Mature, adult statecraft, like mature, adult life, requires recognizing limits, accepting limitations and imperfections, striking balances, compromising, and learning to live within ones means.

[Brett Bellmore]

I think the chief objection to rational basis review, in the context of enumerated constitutional rights, is that it just doesn't take seriously the constitutional language.

Which isn't typically a command that you not do X unless you have a plausible reason to do it. It's typically a command that you not do X, period, full stop, no exceptions stated or implied.

And the Court comes along, and adds an invisible "unless the government has a reason for doing it" to every prohibitory clause in the Constitution. Like the authors had gone and prohibited the government from doing things it would never have any reason to do.