Wednesday, January 27, 2016

"The Constitution is Not Negotiable"

Recently I have noticed several people use the slogan, “The Constitution is Not Negotiable” in defense of their position on particular issues.

I saw it in an article where the quote was attributed to Robert "LaVoy" Finicum, who was killed in Oregon as FBI agents attempted to arrest the leaders of a group of protesters occupying the Malheur National Wildlife Refuge. A Google search shows a number of instances in which this has been used, becoming something of a rallying cry in some circles.

There are two ways in which this can be interpreted.

In one sense, the slogan effectively translates to, “My interpretation of The Constitution is not negotiable.” For all practical purposes, the agent is saying, “I am the ultimate authority of what the Constitution says and I will not tolerate any disagreement from anybody else.” This means that everybody else must either submit to the agent’s authority on matters of Constitutional interpretation or violence will ensue. In other words, violence will ensue.

As soon as two people who are already in perfect agreement internalize this principle, they have given themselves no option but for one to kill, imprison, or otherwise disempower the other. If a whole society were to adopt this position, then that whole society will have no choice but to break up into violent factions in a perpetual state of war until only those who are in perfect agreement survive.

A reasonable and rational alternative to this war of all against all is to resolve to negotiate among different constitutional interpretations. Within this alternative, we will have debates and discussions, we will assign a body of experts as the authority in these matters (the Supreme Court), and we voluntarily agree to submit to the decisions made by this body. We do not have to agree with their decisions, but we do agree not to respond violently to the decisions we disagree with. This allows us to maintain a peaceful society.

However, it requires the assumption that The Constitution is, in fact, negotiable.

This is how civilized people behave in order to avoid violent conflict. They set up a system where individuals can present their cases to an impartial tribunal, agreeing to accept the verdict of the judge or panel rather than going to battle. The uncivilized person, in contrast, refuses non-violent arbitration of disputes in favor of violence. In Robert Finicum’s case, when the violent confrontation came, he lost – there shall be no appeal.

The other interpretation, which can make some sense, applies in cases where there is no difference in interpretations of the Constitution. It is a case in which, “You know that the Constitution prohibits X, and I know that the Constitution prohibits X, but I will allow you to get away with X as long as you do something for me.” Or, perhaps, it could mean, "You do not have to do anything for me; I simply resolve not to object."

Even here, resolving to do something still, first, requires asking if some sort of system exists for resolving the dispute non-violently. If such a system exists, the civilized response is still to use this system. Consequently, before violence becomes a legitimate response, we must also conclude that no non-violent arbitration is available.

Yet, even here, we will need to ask: If the Constitution prohibits some action which, in a given circumstance, is necessary for the survival of the country or the well-being of its citizens, and there is no time to go through the amendment process, would it not be better to negotiate a violation to the Constitution then to face destruction? Possible examples include a potential economic collapse that requires that some emergency measures that the Constitution does not permit, or an existential threat that requires a response within minutes that the Constitution does not permit. At the very least it is not a foregone conclusion that it would be wrong to violate the Constitution to save the economy or the nation (or some significant portion of it).

Rational people realize that individuals will always disagree and come into conflict. Citizens must make a decision whether they are going to resolve their disputes through negotiation and violence. For all practical purposes, the only time when negotiation is not a viable option is when one of the participants in the conflict decide that their position is non-negotiable. A person who holds that their position is non-negotiable (in a community where institutions for non-violent arbitration exists) has left himself no option other than violence.

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