Shayne Wissler
“How far into the foundations, when it comes, must the revolution penetrate?” – Thomas E. Phipps, Jr.

The New Federal Constitution

November 04 2020

“Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind.”

— James Wilson, US Supreme Court Justice

“MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.”

— John Locke

“Force should only be used against those who attempt to use force against others, or against those who will not respect the law in cases where a common decision is necessary and a minority are opposed to the action of the majority.”

— Bertrand Russell, Political Ideals (1917)

“It is idle to expect any great advancement in science from the superinducing and engrafting of new things upon old. We must begin anew from the very foundations, unless we would revolve for ever in a circle with mean and contemptible progress.”

— Francis Bacon

Many people would hate the idea of creating a new Constitution founded upon natural rights. Most people on the Right would hate it because they see the Left tearing down good traditions, so they think the last thing we need is to think about instituting a new Constitution. And most people on the Left abhor the idea of a Constitution founded upon natural rights. But truth isn’t a popularity contest. And the truth is, there are good reasons to do this.

Virtually everyone agrees the original US Constitution is very imperfect. It was product of expediency and compromise. It neglected to incorporate all the values expressed in the American Declaration of Independence, particularly the axiom of inalienable natural rights; and, in a most egregious disastrous and outrageous hypocrisy that haunts us to this day, it did not respect the natural rights of black people. One of its core purposes was simply to create a more powerful system of taxation in order to fund wars, and the means by which it does this is to sacrifice natural rights. Arguably that fatal contradiction has been the cause of the gradual eating away of our individual liberties since the Constitution was first instituted.

“… I consider [Bacon, Locke, and Newton] as the three greatest men that have ever lived, without any exception, and as having laid the foundation of those superstructures which have been raised in the Physical and Moral sciences…”

— Thomas Jefferson

I realize that the vast majority of contemporary people (not just Americans but all humans everywhere) have the attitude that nothing humans can create is perfect, and that to strive for an ideal (such as the ideal of a government that consistently protects natural rights) is a recipe for disaster. But in truth, such attitude is the real disaster. Everything truly great became so as a process of consistent refinement toward an ideal of perfection – I submit the works of Michelangelo or Newton as leading examples. Indeed, it was out of this Enlightenment ideal of human reason as self-correcting and continually improving, that America, by partially embracing the produce of this ethos, became the greatest country on Earth.

At some point in the future, America will reach a Constitutional crisis. The power structures will then seek to drastically amend or replace it. Would you prefer that America’s next Constitution be a product of emergency and compromise, just like the first one? Do you expect that these power structures will actually improve upon its design? You can’t force anyone to accept an objectively better Constitution, but is it better to have that option or to not have it? Creating such option is an enormous undertaking. Is it better to get started now, or to wait… for what? For things to get so bad that we can no longer afford to think patiently and carefully? What are we waiting for?

What we’re reasonably waiting for is only this: people and institutions that could write this new Constitution.

Such Constitution would exist not only as a lone document, but as an intellectual tradition of philosophy and discourse sincerely aimed at maximizing human flourishing on Earth. In other words, creating such Constitution presupposes creating the institution that can create such, and this institution could be a powerful force for good, a leading example of a proper political education and method. In other words, the Constitution itself would be the capstone of the much grander project of furthering reason, liberty, and human flourishing. If this project existed and were true to its purpose, it would be a shining beacon, not only for America but for humanity.

To be clear: I’m not talking about creating yet another inconsistent, compromising, questionably founded, and hastily written document aimed at “popular enough” appeal. I’m talking about carefully crafting something that aims to be true and right, without yielding a single bit of this aim for the sake of popularity. It is a purely theoretical work that may, depending upon how much people value what is actually true or right, have zero mass appeal and therefore have zero practical effect. For this sort of project, such failure has to be regarded as acceptable at the outset. We would of course hope and strive for a world where our fellow human beings would actually embrace what is true and right, and while we may encourage them, we can’t decide for them. But if we don’t even offer the truth to them, then one might argue that we have little to complain about.

The New Federal Constitution would embrace the distinction between federations and localities at its foundation and as one of its chief motivating principles, wherein federations have a moral prerogative to defend natural rights (properly defined), but not to stipulate local voluntary culture and tradition. Such could be framed at the start of such Constitution thus:

Natural Rights Axiom: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”[1]

Federation Axiom: All Federal Law shall proceed from the basis of commonly available and confirmed facts or logical arguments therefrom, including from such axioms as are implicit to the process of rationally ascertaining the truth.

Locality Corollary: No Federal Law shall trespass individual exercise of freedom of conscience and religion except to the extent that such exercise trespasses the natural rights of another individual. A Local Law may exchange natural rights between consenting adults and so shall not be subject to this constraint, except to the extent that it infringes the natural rights of those not party to such voluntary agreement, such as foreigners to such locale, children, and legal incompetents.

Getting people to agree to such propositions (and further honing them toward perfection) is already a big job and would probably constitute a major activity in itself. Presuming engagement, all manner of objections from every direction would surely ensue, ranging from the central concept of “natural rights”, to the epistemology and psychology of human beings, to the grammar and word choice of the propositions themselves. This would create an array of supporting argument, historical documentation, and debate.

But assuming a persistent and well-managed organization, such objections would be answered and settled in accordance to a budding theory of legislation. In other words, the very process of disputation on these propositions could, if intelligently and creatively managed, yield in microcosm the model for a future legislative body. And such ability to judge rightly the law may well lead to ideas on how to judge rightly the facts, and so lead to a novel model of jurisprudence (based, of course, on the best ideas of the past). In other words, assuming quality founders and healthy engagement, by the time you will have finished writing the Constitution, you will have demonstrated to humanity the intelligent means of using it.

The New Federal Constitution wouldn’t merely be aimed at replacing the US Constitution, but would be a new kind of governmental technology that could be used for any federal government anywhere on Earth. And the term “federal” definitely applies to the US States, for these are not themselves localities. There would be themes and variations of possible constitutions, all consistent with natural rights, but applied differently for different circumstance. A State federal constitution will have a different form to a National federal constitution. The United Nations is another such body that is federal in principle. But at they would all share the same root principle: the unswerving commitment to uphold rational truth and inalienable natural rights.

Many people would think: what’s the point of this exercise? Surely, you won’t get enough agreement on your propositions for it to matter. Philosophically speaking, such objection is only a confession that truth does not really matter to the person making such objection. However, we should always regard the truth as mattering for its own sake. Furthermore, even while I foresee no short-term possibility for substantial constitutional reform, the project itself has real educational value that certainly can impact legislation in our lifetimes. In any case, such project, which squarely focuses our attention on the kind of society that’s ideal and proper to our human existence, deserves to exist as part of a healthy civic discourse. In the words of a venerable Greek proverb: “A society grows great when old men plant trees whose shade they know they shall never sit in.”

  1. From the American Declaration of Independence. While I’m quite open to the idea that this verbiage can be improved upon, I also think it is very good just as it is.