The US Constitution Should Be a Living Document

I accept Con's list of rights, but I will also add a list of my own. The exhaustive list of rights is everything that is necessary to provide equal respect and concern for all citizens. According to Ronald Dworkin (Justice for Hedgehogs), "Someone's total freedom is his power to act in whatever way he might wish, unimpeded by constraints or threats . . . His negative liberty is the area of his freedom that a political community cannot take away without injuring him in a special way . . ." (366). The distinction between the two is important. Borrowing from a secondary source,Dworkin believes that a right to liberty in general is too vague to be meaningful. However, certain specific liberties such as freedom of speech, freedom of worship, rights of association, and of personal and sexual relations, do require special protection against governmental interference. This is not because these preferred liberties have some special substantive or inherent value (as most rights philosophers hold), but because of a kind of procedural impediment that these preferred liberties might face. The impediment is that if those liberties were left to a utilitarian calculation, that is, an unrestricted calculation of the general interest, the balance would be tipped in favor of restrictions. . . . Dworkin says that if a vote were truly utilitarian, then all voters would desire the liberties for themselves, and the liberties would be protected under a utilitarian calculation. However, a vote on these liberties would not be truly utilitarian nor would it afford equal concern about and respect for liberties solely by reflecting personal wants or satisfactions of individuals and affording equal concerns to others . . . because [of] external preferences, such as prejudice and discrimination against other individuals deriving from the failure to generally treat other persons as equals . . . These external preferences would corrupt utilitarianism by causing the individual to vote against assigning liberties to others. Accordingly, the liberties that must be protected against such external preferences must be given a preferred status. By doing so, society can protect the fundamental right of citizens to equal concern and respect because it prohibits "decisions that seem, antecedently, likely to have been reached by virtue of the external components of the preferences democracy reveals." (The Philosophic Foundations of Human Rights, Jerome Shestack, Human Rights Quarterly 20.2: 201-234) Con's first point deals with liberty of contract. His argument basically boils down to the "Contract? I never signed a contract!" shtick, and you shouldn't buy it for a number of reasons. First, the principle that liberty is inviolable overrides consent--in other words, rights cannot be subjected to a vote, for the simple reason that if they can be revoked by a simple majority vote, they aren't really rights. Second, consent of the governed is not valuable as an end, but a means to an end. Suppose a woman opposes restrictions on abortion until fetal viability, but the state they reside in institutes waiting periods, requires consent of parents/the court, etc. They did not consent to those restrictions being placed upon people. Even if she are in the government itself, it cannot be said that the women "consented" to such restrictions. The sense of consent that Con uses is this broad sense, in which every person must consent to every single law they live under and every condition that would potentially infringe on their freedom, and it is a total fantasy--there is zero possibility of ever achieving broad consent like that. Even in the state of nature, the fantasy land where everyone voluntarily consents to contracts, Con cannot pretend that people "consent" to starvation, for instance. If we accept that consent of the governed is thus not a right, then we have destroyed our own framework that we agreed to. The only solution is to change the way we view our terms. If I have an apple, for instance, and a thief takes it without my permission, what is the crime? The crime in itself cannot be my lack of consent; the crime is the theft of the apple, and the lack of consent is why it is a crime. However, say a random stranger, in an act of kindness, slips $20 into my coat. I did not consent to that, but was any crime committed? After all, I did not consent to this action performed on me. Consent of the governed is a means to the end of the protection of liberty--it is not an end in itself. It does not matter that Americans today did not sign the Constitution. If one were to sign a regular contract, ignorant of some of the provisions, and it turns out that those provisions are actually favorable to the ignorant person, there is no injustice. What grants the Constitution legitimacy is not consent; it is its protection of the rights of the people. As Dworkin notes, " . . . a collective decision to impose a duty not to kill and to threaten a serious sanction for any violation is in itself an insult to the dignity of subjects. On the contrary, your dignity as an equal citizen requires that government protect you in this way. It is not demeaning . . . to accept that a majority of your fellow citizens has the right to fix traffic rules and enforce the rules they fix, provided that the rules . . . are not wicked or desperately foolish" (Dworkin 367). With this in mind, we must devise a different analysis from what Con has suggested. The measure of any governmental system is not whether it is completely consensual, but whether it is just, and by extension, whether it protects individual liberties. Con's argument is wholly based on contract language, which I have debunked, but his alternatives seem to be meaningless when it comes to protecting liberty--destroying and replacing Constitutions in itself carries no inherent procedural benefit. A Living Constitution does. As Dworkin noted, democratic utilitarian calculations and votes on rights are inherently unjust because of discrimination against others, so the rights cannot be put to a vote. They must be protected by an independent institution--the Supreme Court. Rehashing constitutions every few years or abolishing the constitution is merely a more complicated form of the tyranny of the majority. Extend Obergefell v. Hodges as an example of protection of rights thanks to the Living Constitution. Extend judicial review as another example. Since Con asked me to justify why a living constitution would be superior to a new constitution in Rome, I'll respond to that. The reason is as simple as that a new constitution was impossible to create. As I said last round, there was "enduring conflict between two camps--the populares and the optimates--with the former relying on popular support to pass reforms and the latter relying on senatorial support to promote stability (153). The clear issue is that there was a dichotomy between the two, when there shouldn't have been a dichotomy. Choosing between terrible law and lawless reform is not a choice. The populares largely gave up on the law altogether, and the optimates failed miserably in their attempts to restore the Republic." Had new constitutions been made, they would have inevitably slanted toward the more-numerous populares, who were the epitome of majoritarian, as evidenced by the many mobs that they formed to kill political leaders and kick people out of the Senate and all sorts of other fun things (sarcasm). If I haven't shown that a LC would be better, I've at least shown that creating a new Constitution or leaving the dead one would have been a lot worse.