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.