Representative Ron Paul has recently declared that Social Security and Medicare are “unconstitutional.” His sentiments reflect the views of many who claim to appreciate spontaneous orders. In this there is an irony.
There are two ways to view the US Constitution: as a document of rule by a particular point of view and as a document setting forth procedural rules that citizens must follow if they want to participate in a democratic process. The first conceives the constitution as a document that sets forth the organizing principles of what Hayek called a constructed order or an organization, or what Michael Oakeshott called an “enterprise association.”
The second conceives the constitution as a spontaneous order that established procedural rules which any citizens may use to recommend policies and representatives, which the political community as a whole can then discuss and decide upon, either directly or indirectly through representatives. This is much closer, though not identical, to what Oakeshott would term a civil association.
One reason the constitution is so short is that it was almost entirely created in harmony with this second conception: as a document delineating procedural rules to facilitate self governance by a community of equals. It exists to promote “the general welfare” without trying to define what that might be. The general welfare is discovered and then decided through citizens utilizing neutral procedural rules. As with any discovery process there is no guarantee that false leads will never be pursued nor that mistakes will not be made, but on the other hand there is no better way by which free individuals might be able to pursue their visions of possibilities before them. The few provisions that injected concrete values around specific interests, such as its protection of slavery and giving slave interests disproportionate representation in the House of Representatives and in choosing the president, were sources of discord and ultimately of civil war.
The constitution is such a document not because the Founders understood spontaneous orders, but because they were in a position where the document had to be accepted by a majority of every state that would join. To accomplish this it had to be perceived by them as fair. This meant it either could try and protect an exhaustive list of the important organized interests of the time – which is likely what would happen today were it rewritten – or it would set forth fair procedural rules. The one powerful organized interest, slaveholders, did get their protection, and we see where that led us.
Ironically, libertarians such as Ron Paul treat the constitution as the principles of an organization, as a document of rule by some over others. It is a document whereby Paul’s conception of what a property right is, is imposed on anyone who disagrees – and the police and military back him up. In this it is a completely constructivist vision of freedom: freedom is doing what the wise ‘philosopher’ thinks is freedom, and those who disagree are out of luck. Unless of course they can get it amended, whereby a different set of philosophers impose their constructivist vision on everyone else.
To say this is ironic is an understatement.
Studies in Emergent Order 
Daniel Hofford
May 28, 2011
The irony noted, what is the point? Are we then, free to have slavery, free to rape, pillage and plunder as long as we follow the procedural rules?
Gus diZerega
May 28, 2011
Daniel-
Not in a democratic order. For it to be democratic the same rules have to apply to everyone, the same legal status and right to the courts. As many founders knew, slavery was in direct contradiction to the principles of the Declaration of Independence, and that is why later defenders of slavery like Calhoun and Stephens explicitly repudiated it.
You describe an anarchy where there are no rules. A democracy is a system of rules oriented around specific values that the community has decided upon through following democratic procedures. The constitutional rules tell us what procedures to follow to adopt the laws and policies oriented towards specific values and projects. For example, they allow Paul to argue for his position and if he convinces enough people, it will prevail even though the same rules allow it to be overridden if enough people agree.
Corey Jarvis
October 8, 2011
It seems as though you understand the constitution to be describing a democratic system rather than a republic. Ron Paul has stated in a few interviews that he is not a proponent of a democracy, but rather a proponent of a republic. This is probably exactly what you are talking about regarding “procedural rules,” I just wanted to point out that Ron Paul understands this distinction regarding his view of the constitution.
Gus diZerega
October 9, 2011
Corey-
Federalist 10 is where James Madison describes why a republic is better than a democracy, a passage quoted entirely out of context by both ends of the political spectrum. At the time “democracy” meant direct democracy, with examples like Athens in mind. The definition of a republic was not nearly so clear, and the term had been applied to everything from Rome to England. Madison wrote later that traditional political analysis did not have a word for what our Founders were attempting to create. On this specific issue he wrote in 1831 to N. P. Truist, “the Gov’t. of the U.S. being a novety and a compound, had no technical yerms or phrases appropriate to it, and . . . old terms were to be used in new senses, explained by the context or by the facts of the case.” We also see evidence of this in Federalist 39, although he does not address the democracy/republic issue. That was because he already had in Fed 10, where he is distorted and misquoted to this day.
In Federalist 10, he defined republic: “The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.” As an experiement I suggest you ask those who say we are a republic not a demovcracy to define what they mean by republic. I have never found such a person to agree with Madison’s definition, or even to be aware of it, because they rarely if ever actually read Federalist 10. I doubt Paul ever did.
The term “representative democracy” did not yet exist. It soon would. Shortly after the adoption of the constitution the French political theorist AVC Destutt-Tracy wrote a study of the new country. Thomas Jefferson liked it so much he translated it into English. Jefferson used the term “representative democracy” in his translation. Jefferson and Madison were lifelong political allies, by the way.
NO siginficant political thinker or politician has ever advocated turning the US into a direct democracy. Certainly none of the people Paul criticized do so. The fact, and it is a sad fact, is that many people claiming to understand the constitution do not know the most fundamental things about it in the Founders’ eyes. The arguments we are a “republic not a democracy” combined with confusing “small government” with “limited government” are errors of the first magnitude. Please read Federalist 10 for yourself. It is not long, and while the style of writing is difficult for many today its argument is very carefully laid out.
JNagarya
December 21, 2011
“The Federalist” is a political document. It has no legal authority. Moreover, it was written by a minority of three (four, actually; but who cares for the facts of provenance?) out of over 50 delegates to the Convention. And was countered by three who refused to sign the Constitution because it didn’t include a Bill of Rights. (Federalist No. 84 explains why a Bill of Rights is not only unnecessary but also would be dangerous.)
As for the disparagement of “democracy”:
The reality is that every “democracy” that had been tried had failed. Further, the Founders lived in an age of monarchy, so distructed democracy. But if one READS “The Federalist” carefully, one finds that while they distructed democracy, they did not reject it.
The essence of democracy is elections. The Constitution stipulates that there shall be elections. Ergo, the US is a democratic republic; a representative democracy.
Corey Jarvis
October 9, 2011
I have indeed read it before, along with the rest of the federalist papers, but clearly I’ll have to go back and reread it, thanks.
JNagarya
December 21, 2011
The so-called “federalist papers” were articles published in newspapers by their authors. They were later compiled AND EDITED together into the volume titled “The Federalist”.
Which means that no one here has read the “federalist papers”.
Counter to the “federalist papers” were the ANTI-Federalis’ writings, properly called “anti-Federalist papers” because not compiled and edited together.
Gus diZerega
December 21, 2011
Not sure what you mean. The editors compiled the papers, but the papers were by three men arguing in favor of the constitution, one of whom has left us the ONLY written records of what actually took place at the convention. Hamilton was dissatisfied with it, so far as I know, everyone was. Jefferson actually said he was “charmed” bu some of the compromises that Madison did not like, such as the Senate’s giving every state two votes regardless of population.
There is no definitive account of what the founders thought of the constitution because
1. We can disagree as to who qualifies as a founder.
2. Different founders thought different things and interpreted the same things differently.
This is all the more reason why ideological treatises as to what the founders really meant are in my mind largely a waste of time – with the sole exception of the basic logic giving coherence to the whole, which Madison did a wonderful job of explaining. This logic existed not because of ideology so much as from the fact that rules had to be found that everyone could agree on – and hence generated a form of spontaneous order.
Or do I miss your point?
Steve
December 20, 2011
“libertarians such as Ron Paul treat the constitution as the principles of an organization, as a document of rule by some over others.”
This is incorrect, Ron Paul treats the constitution as principles of an organization to defend the liberty of Americans from the Government.
JNagarya
December 21, 2011
Then either Paul nor you undersatnd our system.
The “Declaration” — though neither law nor “founding” document — stipulates that the power of the gov’t derives from We the people. More concretely and clearly stated it is Lincoln’s “gov’t of, for, and by the people”.
James Madison put it this way:
“Government is the means by which the community regulates itself.”
And numerous Founders spoke of electing representatives to our representative gov’t “from among ourselves”.
I.e., there is no separation between We the people and our gov’t — excpet as established by the necessity of elections. And except for the anti-gov’t anti-Americanism promulgated by such as Reagan and far-right lunatic fringers, such as Paul. The Founders were, by contrast, PRO-gov’t — they established gov’t, and attacked and overthrew ZERO gov’ts.
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And they were PRO-taxation, which is why they incorporated it in the Constitution.
b-psycho
December 21, 2011
“numerous Founders spoke of electing representatives to our representative gov’t “from among ourselves”. ”
Even if they were serious about that (which their limiting of voting to white male landowners at the time shows to be bunk), do you sincerely believe that bears even the slightest resemblance to the huge ball of self-serving corruption that the U.S. government actually is?
Gus diZerega
December 21, 2011
Steve- You make a dichotomy where the Founders were thinking of something more complex. There are two problems the constitution seeks to solve to create a representative democracy. First how do we prevent majority as well as minority tyranny. Madison and others thought that size and complexity prevented majority tyranny and the electoral principle prevented minority tyranny.
Second, how do we keep the representatives under control? Various aspects of the constitution even before the Bill of Rights as well as the first 10 amendments (submitted to Congress, by the way, by Madison) were attempts to accomplish that.
So yes, the constitution sought to guarantee liberty, but it also sought to guarantee self-governance by Americans as citizens. Based on all I have read, Paul is largely uninterested in self governance in this form. That is why he wants to subordinate us to his ideology.
JNagarya
December 21, 2011
Nor will one find the anti-American “Big Gov’t” term anywhere in “The Federalist”; but one will find argument in defense of a powerful, central Federal gov’t, because that is precisely what the Framers were about establishing.
As for Jefferson and his rhetoric being used to give a sense of legitimacy to his “anti-gov’t” views:
Jefferson had nothing whatever to do with the framing of either the Constitution or the Bill of Rights, so his views don’t apply to what the Framers of it intended. As the Constitution expressly stipulates, Congress shall make the laws (as it did the Bill of Rights, which was written in the 1st Congress).
Jefferson was not a member of the Constitutional Convention; and was never a member of Congress. We do not determine the meaning of the laws by means of the views of unelected private, individuals.
Gus diZerega
December 27, 2011
This is in reply to b-psycho, because the reply button does not appear below that post.
The constitution did not set any property or gender or racial limitations on the right to vote. It was originally color, income, and gender blind. That rule varied among states with the South generally the worst, and it accepted whatever rules the states had. If it had not the state would have rejected it.
At the time the constitution was adopted this included Rhode Island, a state with universal manhood suffrage. Some northern states allowed women and blacks to vote. Usually the women had to be single-either unmarried or divorced, but New Jersey allowed all women to vote.
These advances were later lost and not regained until the suffragette and feminist movements. The first time manhood was used in the constitution for voting was when the 14th amendment guaranteed the right to vote for males only. (This was because of a fear of Black women voters.)
The history of voting rights in the US does not fit your description very well.