I recently unsubscribed to the Cato Institute’s daily podcast. I’ve never been a big fan of Cato’s Right-Opportunist, Fabian approach to libertarianism, but there is a dearth of libertarian podcasts that analyze what’s going on inside the beltway (except when it comes to foreign policy, where Scott Horton’s Antiwar Radio will have a monopoly on the market for a long time). The main reason I stopped listening was one particular episode which featured a nameless wonk defending Obama’s use of CIA-directed drone attacks in Pakistan. I nearly broke my iPod. But a secondary reason was that seemingly more than half the episodes since I started listening were about issues related to the Supreme Court and its interpretation of the Constitution. This is to be expected, since this year has so far seen a lot of activity there: the Kagan nomination and important (as far as those things go) decisions on the second amendment and corporate money/free speech (take your pick). I became impatient with Cato’s relatively conservative take on the court, but what finally hit me was how boring I found the whole thing, especially compared with the daily exposure of the truly malevolent shit our government has been up to in the War on Terror. I finally had to admit to myself what I already pretty much knew: I do not care about the Constitution. At best it’s a thin, soft sheath over a vast iron truncheon. I do not care that most people don’t know that torture is unconstitutional, but I am horrified that they approve of its use, and I am unconvinced that correcting the former problem would help with the latter.
The Constitution in American political discourse is usually just a veil for other concerns and interests. Conservatives are most likely to identify as “Constitutionalists” who want to interpret the document “strictly” and according to its “original intent” (an analogy here to the fundamentalist biblical hermeneutic is probably quite apropos), but they do so because they think- rightly in many cases, wrongly in others- that the Constitution conforms to their conservative vision of America. But that doesn’t stop them from disregarding it during wartime (which in our lifetimes means all the time). Libertarians are often highly supportive of the constitution, but really would probably love to scrap everything except the Bill of Rights (addenda forced upon the document by the naysayers in the first place), and if they could design a machine to automatically protect against rights-aggressions they would do so in a heartbeat. Liberals should probably just come out and say they wish for the abolition of the second amendment.
Now I’ve just been going through the archives of the Journal of Libertarian Studies and come across historian Jeffrey Rogers Hummel’s review of Thomas Woods’ (now of Meltdown fame) Politically Incorrect Guide to American History. Hummel is quite rightly critical of the book- which I read when it first came out- from its asinine packaging and marketing (admittedly the publisher’s fault and not Tom’s), its glib style, and the barely held-together tension between libertarian, conservative, and neo-confederate sympathies. But most of all Hummel takes Woods to task for his “constitutional fetishism,” a feature far more appropriate to a conservative than a libertarian, even a conservative libertarian. He wonders why a libertarian ought to care about constitutionality per se, since,
The Constitution, rather than representing the culmination of the American Revolution, embodied in fact a reactionary counterrevolution, designed to reverse many of the previous victories of Liberty over Power.
This was precisely the position of Woods’ avowed mentor, Murray Rothbard, who always preferred the Articles of Confederation. The most charitable reading I can give Woods’ book is that he’s trying to win traditionalist conservatives over to a more libertarian position, but the book so effectively muddies the libertarian message that traditionalist conservatives are more likely to think that their position already is libertarian (or, vice versa, that libertarians are or ought to be traditionalist conservatives).
Then Hummel goes on to write probably the most brilliant thing I’ve ever read about the Constitution, with implications far beyond the libertarian political culture:
In the final analysis, there is no absolutely correct interpretation of the Constitution. From the outset, it was a political document, deliberately ambiguous in some clauses to ease its ratification, and contested right from the Philadelphia starting gate in 1787. Since then, competing theories about applying the Constitution have vied for political supremacy. American politicians have invariably embraced whatever constitutional theory fits their policy predilections. Over the two centuries and more the Constitution has been in force, only a mere handful of intellectually consistent statesmen has ever publicly concluded that government activities they favored for other reasons were proscribed under the Constitution. And I include among politicians all judges, because the courts have always been as politicized as the other branches.
An intriguing question is whether American political life could continue in good faith if we all admitted these facts.