This article was published in the Winter 1995-96 issue of Formulations
by the Free Nation Foundation
 
Constitutions:
When They Protect and When They Do Not
 
by Randy Dumse

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How much does a "constitution" weigh? What is its mass, size, texture and color? Is it more sturdy than granite so it is useful as a foundation? Is it stronger than steel, so it can be fashioned into armor to stop bullets? Is it more durable than concrete, so that we can defend our shores with it? Or is it so fragile it takes our constant guard, lest it should be breached. No, a constitution is none of these things and in another sense, it is all of these things.

While some say a constitution can be a foundation for a nation, they speak only figuratively, and with great inaccuracy. Others would argue a constitution can stop bullets, not only from being fired, but also imply preposterous powers, as if the constitution could somehow allay the bullets' impact. In the same vein, government employees are sworn to defend a constitution as they would defend a castle, or, as they would in earlier time, a bulwark protecting their homes.

Metaphorically, a constitution is treated as matter, substance and idea amorphously intertwined. A constitution is sometimes a physical piece of paper, the foundation of an institution, an institution unto itself, a set of ideas, a commitment or contract, a mythical entity, and a mystical power. It is essentially all of these things at the same time. In short, the word "constitution" as a defining metaphor is differentiated in character from most other defining metaphors (words) by its ubiquitous vagueness.

This condition usually occurs when men talk of spirit, rather than flesh. This looseness of meaning is common in supposed knowledge prior to the application of objective science. Such are the powers and features of the gods. An ancient might speak of the god of harvest in such terms. The god is a spirit to receive blessings from, and yet needs to be blessed by man. The god is a spirit who will protect, and yet deserves our protection. We will fight for the honor of our god.

Kings, often thought of as gods, enjoy many of the same mystical characteristics attributed to constitutions. Kings are individuals, yet stand symbolically for their land, and the very embodiment of the people. They often physically, as well as metaphorically, defend the inhabitants of the land, and yet need the people of the land to defend them. The historical period of constitutional ascendency, corresponds with that of monarchical decline. In all respects other than the individual incarnation in flesh, a king and a constitution have very much the same character. Therefore, one might not be far wrong to opine, a constitution is the essence of a king, less the man.

In the case of a constitution, the flesh of the king is replaced with a meme-set (usually) transcribed on paper. To explain, Richard Dawkins in The Selfish Gene calls a certain kinds of ideas, memes. Ideas, which (can) live longer than their originators and affect the behavior of those who possess them, are memes. Just in the same way a gene would biologically be transmitted from generation to generation, so memes are passed along. Like genes, memes modify behavior. Unlike genes which are relatively fixed in the chemical mechanics of the cell, memes are easily mutable. Therefore memes are analogous to "software" while genes are similar to "hardware." Dawkins describes memes as nature's way of making field modifications to men without remaking a species with every new trial.

Hopefully, any new meme will have characteristics which make it more likely to survive, or in Dawkins' terms, repeat itself in generation after generation. If it can propagate itself to future generations, and do so better than any existing meme, it will be successful. If not, it will fade to extinction. So the change in the master meme of government replaced "king" with "constitution." The chief difference in the change was the removal of investment in a mortal being. As such, the old master meme of kingship caused a change of government with every new king.

The meme-set of the country changed with each new king. If the new king was benevolent, the people flourished. If the king was not, the people suffered. The phrase, "The king is dead, long live the king!" is surely as perplexing a statement as ever uttered. Taken at face value, it makes no sense. It makes a great deal more sense if taken as replacement of one meme-set representing the country, with another. As such it would read, "The old idea-set is dead, long live the new idea-set."

Unlike a physical man, a meme, or meme-set, can outlive an individual, passing unaltered through generations. Therefore, the change of master meme defining government from "government vested in a man" to "government vested in a constitution," the meme-set of laws could remain relatively constant beyond individual life spans. This clearly states the essence of the popular quote concerning the United States, "We are a government of laws, not of men."

Certainly, there are other memes more fundamental than the master meme of government or the meme-set embodied in the laws of government. For instance, a language is a meme-set which may evolve slowly, but out lives most instances of government. Latin is a prime example. Religion is classically one of the longest term meme-sets, often crossing over language barriers and outliving them, the Judeo-Christian tradition and ancient Hebrew being a fair example. Other customs of the people may be longer term as well. For instance, pasta is more permanent than parliaments in Italy. Let us gather all these superior memes under the name of culture. While culture is a fertile ground for further examination of memes and meme-sets, it is beyond the scope of this article. Let us now return to the memes of governments and constitutions.

In time, the constitutional meme itself can change. When if changes it can take on a new personality. This is a bit like a once good king, later losing his mind to disease or age, beginning to take on a darker character. While constitutions have less of the foibles of mortal men, they too seem to be able to drift into senility. It is not the words on the paper that change, but the meme-set of laws interpreting those words which changes.

In the discussion of the proposed constitution of Oceania, The Atlantis Papers reviews the current situation in the United States. It says, "the U.S. is no longer a place that..." and lists the various trampled principles, particularly those in the Bill of Rights. The conclusion is drawn: the U.S. is not a place where constitutional rights have the power to protect, anymore.

Then, The Atlantis Papers goes on to detail the Oceania Constitution, with the understanding it is somehow to be better written. By starting over again, it is assumed the new constitution will overcome the shortfalls of the previous constitution, and protection of the people's rights will this time be maintained. It does so mainly by adding detail to the paper description, where before principle was applied.

This is undoubtedly limited range thinking. First, the U.S. Constitution is not notable for its failure, but instead its unprecedented success. In this historic document is an alternate master meme to "kingship" which lived relatively unaltered through six generations. Being the oldest written constitution in the world, the first new master meme following kingship, gives it venerable clout. Replacing it with a new meme-set should not be considered a light or frivolous task. This issue must be disregarded for a moment, however, to allow the more fundamental problem to be identified. Here is the essence of that problem.

If constitutions do not protect, we don't need a better constitution for it will not protect either.

To draw an analogy, imagine a farmer, who has built a pen to keep his turkeys in, with stone walls 3 feet high and one foot thick. Next morning he finds half his turkeys outside, and many of them dead. He concludes he needs a better wall, so he makes it twice as thick.

Foolishly, whether he made it twice as thick, or even twice as high, the stone wall will not keep his turkeys in, or more significantly, keep killer hawks out. A wall will never do the trick. It cannot, by its nature, provide the protection needed. What is needed is another kind of structure. When dealing with birds, something with a roof is in order. The thickness of the walls of the coop are not as important as the presence of a roof.

Put another way, what is needed in government is not another meme-set of laws, but a new master meme. What is lacking, is not detail, but in definition. No law, in itself, can defend itself from being broken. No constitution is as well suited to defend itself, as is a king, for at least a flesh and blood king has life and will. Despite our attempts at anima, referring to our constitutions as "living documents," the inanimate constitution has no such power of self creation or defense. Only when fitting to the animal protected, can a constitution be workable. To the degree the constitution does not fit the nature of the animal protected, is it an unsuccessful meme.

What might this new master meme be? Personally, I cannot say, and am only able to loosely speculate on the future. Such is the purpose and intent of such organizations as the Free Nation Foundation. Undoubtedly, some better master meme may be found through discussions such as this, as ideas are used to stimulate new ideas.

I can, however, point out some of the follies of the current constitutional memes, suggesting a bad match between the "turkeys and the wall around them." Two significant books, The Myth of Natural Rights by L. A. Rollins andNatural Law by Robert Anton Wilson, poke considerable fun at the current paradigm of natural rights, which most constitutions are based upon. As starting points, the authors' comments are quite enlightening. In different cultures, places and times, the "natural" man has been the starting point for things which we today might think atrocities. The authors start with a viewpoint other than that of the average American, brought up in the American schooling system.

For instance, the Catholic church has a premise about the nature of man, and therefore derives rules about conduct which are quite unsuitable to men of other religions. Yet they start from the identical premise with which the U.S. Constitution starts the natural rights of man. The natural man in each case is only slightly different in character. The premises make tremendous differences in the outcomes.

The authors point out how a "natural right" will not turn away a knife thrust. Further, they claim a padlock is a much better deterrent to property loss than a "natural right." Just as constitutions are imbued with supposed "mystical" powers, so are "natural rights." Unfortunately, when these powers are put to an actual test, they fail to provide the protection they guarantee.

So, in my opinion, the current memes of government are far removed mechanics which actually promotes well being and freedom. Ultimately, it is still the threat of retaliation, of naked force, which stands against preemptive violence. Fuzzy thinking about gods, kings and constitutions symbolically stands in for the assurance of retaliation. In a just society, retaliation is assured. Even if the injured is destroyed, others will retaliate in his stead. In a lawless society, violence is usually ignored if not rewarded, and only occasionally punished.

Sadly, as independent individuals, we are unable to secure our freedom. Reflecting on the U.S. Declaration of Independence, we see to "secure these Rights, Governments are instituted among Men, deriving their just powers from the Consent of the Governed." If one stands as an independent individual, his consent to his "self" government only derives power from one individual. The power derived from one, is not much power. All other self-governing powers are roughly his equal. Worse, any group whatsoever wields a greater power. There is no reason a greater power should of nature be benevolent, and frankly, it is far more likely any group he does not belong to will be hostile. Therefore, the independent individuals, is always outnumbered and overpowered by any ambitious group. Consequently, independent individuals are helpless in the face of congresses, and are at best at the mercy of their tolerance.

It is only by uniting with similar minded individuals and pledging ourselves to mutual defense any honest deterrent to aggression can be achieved. Lacking this social glue, no one is safe. Aristotle said, "The essence of friendship is living together." I say the essence of living together is standing together. The only value in a constitution, is the commitment of the people who hold it to assure each other they will come to the defense of the other, should it be breached. Such mutual commitment is the glue of a free nation. There can be no other. D

 

Randy M. Dumse, of Texas, once served as a Gunnery Officer in the U.S. Navy. Now he owns companies which he has built himself, notably New Micros, Inc., a company in the embedded computers market, with multimillion dollar sales. He is also involved in breeding and racing Thoroughbreds.

 

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