Bithead: Look, John, that infrastructure was set up by mutual agreement within this society, within this culture, within this country…. years before any of us were born.

The decision to fund that out of public monies was done long ago. That choice is now part of that society. Call it baggage, call it history, call it what you will, it is part and parcel of what the society has become, so far.

I think this is perfectly absurd. Even if the decision to fund roads by coercive taxation were legitimate then, I don’t see how that obliges anyone now, who (ex hypothesi) wasn’t party to the “mutual agreement.” But let’s pretend for the second that that’s not so. Let’s go ahead and suppose, with you, that using government roads involves you in an obligation to pay taxes.

Fine. I’ll swear not to use government roads, if it means that I don’t have to pay any tax anymore. Will you support my right to refuse to pay taxes as long as I don’t use the roads?

It’s true that freedom of movement across government borders is not a civil right. So what? Most of what the so-called “civil rights” movement was asking for were more than just civil rights, as well.

“As long as we’re running around here asking the white man for civil rights, we’re at his mercy. As long as we’re in Washington, D.C., asking him for civil rights, we’re at his mercy. The entire civil rights program has to be expanded: expanded from the level of civil rights to the level of human rights. … It’s true that it’s within the power of Uncle Sam to give or not give you and me civil rights. But human rights are something that you have when you’re born. Human rights involves the right to be a human being. … But there has been a conspiracy, to keep you and me barking up the civil rights tree, so that we wouldn’t be aware of the human rights tree.” – Malcolm X

Bithead: ‘When Jefferson wrote that “WE HOLD THESE TRUTHS TO BE SELF-EVIDENT” he was not speaking a universal truth at all. The operative word in that phrase is “WE”.’

Jefferson was not claiming that everybody held those truths to be self-evident. He was, however, claiming that in fact all men (without qualification) are created equal, and endowed by their Creator with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness. That includes Mexicans, incidentally.

If you want to make up a new position on which only people within certain cultures are created equal, you’re free to do so, but it is irresponsible of you to go around pretending that you are just explaining Jefferson’s views as expressed in the Declaration of Independence.

Bithead: “Morals, you see, are a group thing, and never individualistic in nature. They are, as a result, (yet again) set mostly by the culture. Wherein, if you re-read, you’ll find is the crux of my position on this matter.”

She didn’t say you were an agent-relativist. She just said that you’re a moral relativist. What you’re endorsing here is a straightforward form of cultural relativism, which is indeed one form of moral relativism (since it holds that the moral obligations you have are relative to the culture, and can vary from one culture to the next).

It’s not a very promising foundation for politics, either, since if it were true, it would mean that absolutely any form of tyranny whatsoever could be defended, and any crime justified, no matter how monstrous it is, as long as a commanding faction of the culture in which it is being committed approved of it.

Bithead: “Why of course, slaves were not a part of the original contract… initialy…”

So was it morally legitimate to enforce the terms of the U.S. Constitution on slaves at any time prior to 1866?

Bithead: Which has nothing to do with the topic at hand.

Yes, it does.

If you’re trying to use the fact that people didn’t leave after the Constitution was ratified as evidence that they consented to the Constitution, then basic intellectual honesty requires you to at least abandon this argument when you’re discussing the couple of million people in the United States who did not have the option to leave, and were forced to stay where they were whether they approved of the new Constitution or not.

I think the argument is terrible even for those non-voting Americans who could leave without the threat of being hunted down and violently forced to return, for the reasons I’ve discussed above. But if you honestly want to try to defend an argument based on tacit consent, then you have a baseline obligation to concede that you haven’t proposed any meaningful criteria at all by which enslaved Blacks (just to take one prominent example) could be said to have consented to the authority of the federal Constitution.

Me: Again, substantial numbers of adults had absolutely no choice whatsoever about whether to stay or to leave.

Bithead: No choice? Nonsense. They could have left at any time.

The Constitution of the United States: ARTICLE IV. Section 2. . . . No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

No, Bithead, they could not.

Bithead: For someone so loud about extolling the virtues of the individual, you seem to think them quite helpless.

Slaves typically were pretty helpless when it came to coming and going as they pleased. They were made helpless through the use of intimidation and brutal government-approved physical violence. That’s part of what being a slave means. It’s not their fault as individuals; it’s the fault of the individuals who enslaved them, and the state governments that enforced it, and (not to put too fine a point on it) the slave-catching federal government that backed it up, under the auspices of your bloody Constitution.

Of course you know this. So why are you hanging on to the non-existent freedom of movement in order to prop up your mythical majoritarian approval?

Bithead: “Because those are the consequences of their choice.”

Look, if I have a gun and I demand, “Your money or your life,” then I’ve established that letting me take all your money is a consequence of declining to get shot to death.

Does that mean that when you (very sensibly) hand your money over to me, I can retrospectively take the fact that you chose an action the consequence of which was my taking all your money, that you consented for me to have all your money? If so, this would be a happy result for muggers: it means that nobody ever gets robbed at all, since everyone “consents” at gunpoint to turn over the loot.

Bithead: “Nor have you, or anyone for that matter, provided me with anything that suggests that those that stayed disagreed with the constitution substantially.”

1. Again, substantial numbers of adults had absolutely no choice whatsoever about whether to stay or to leave. You have still not provided any reason whatsoever to take their presence as evidence of consent to any social contract whatsoever. Nor should you try to provide such a reason: it’s a ridiculous position and you ought to be too embarassed to try to defend it.

2. Of those who did have a recognized legal right to move at their pleasure (basically, adult white males, minus those held under terms of indentured servitude), you still have offered no more reason for presuming that they accepted the Constitution than I’ve given for presuming that you accept my coronation as Emperor of North America. Why should they be under any obligation whatsoever to leave their own homes if they do not agree with the arbitrary demands of a handful of people that they never chose to invest with any authority whatsoever to go around drawing up “social contracts” on their behalf? I don’t need to demonstrate whether they did or did not like the results of the process; if governments derive their just powers from the consent of the governed, and the governed in question were never bloody well asked for their consent, then the government has no just powers over them unless, until, and only so far, as those individual people actually grant them.

If you want to try to defend the Constitution, and the best you can do in favor of this ridiculous fig leaf of “consent” is (1) the will of most of a tiny minority of the population and (2) the failure of the remaining minority that could abandon their own homes in the face of the arbitrary demands imposed on them by (1), then you had better just give up and start arguing for a theory of Divine Right, or the spoils of conquest, or maximization of utility. You’re certainly nowhere near anything that could plausibly be construed as the consent of the governed.

Bithead: “if it was assured as an absolute constitutional right would they have fought tooth and nail to keep packing the court with pro-abortion liberals?”

… because it’s controversial, and they’re aware of this fact?

Believing that you’re right about some point of legal interpretation doesn’t necessarily mean that you believe everyone agrees with you on it.

Bithead: “Your own reaction to all this tells the story.”

How?

Bithead: “But of itself, that suggests that abortion is not a constitutional right.”

Why?

David: “There is exactly one abortion clinic in South Dakota and I don’t believe it full time one. There is just not an overwelming demand for abortion services in South Dakota.”

This isn’t a safe inference. You are aware, aren’t you, that state governments have made it rather hard to start providing new abortion services, particularly in states such as South Dakota? (Also that most of the abortion clinics in the country only perform the procedure on certain days; there’s nothing especially weird about not being a “full time” clinic.)

This doesn’t have much to do with whether there’s market demand for the medical service; it has to do with a deliberately hostile regulatory environment.

“If you disagree with the constitution so much you have a choice and it’s one you’ve always been free to make: Leave the country.”

1. I believe we were originally talking about the folks who were in the area in 1788, rather than me. Of course, you’re aware (whether or not you happen to use that awareness in this particular instance) that millions of people had no option at all about whether to stay or to go because they would be hunted down, captured, and flogged, mutilated, or even killed for daring to try to leave. A few (adult white males not indentured) had the legally recognized right to move at their own pleasure, but this brings us to the second question:

2. Why should they have to leave? You’ve provided no basis at all for thinking that the arbitrary will of a handful of convention participants and the 5%-10% or so of the adult population that was able to vote to approve them should have any morally binding force at all on the vast majority of the American population at the time, let alone all their future descendents and future immigrants, any more than my arbitrary declaration of myself as Emperor of North America should require that everyone else either to hightail it out or be subject to my absolute authority. Why should it? What is the difference? At this point you have clearly abandoned any attempt to justify this dictation of terms by the consent of the majority (the better for you, since empirically there wasn’t any majority to begin with), but then what does justify it? Divine right? Force? The fact that, in retrospect, you happen to like the substantive political regime that resulted?

3. Please note that this is a rather important point, since in the absence of having provided any justification whatsoever for treating the demands of the Federalists as less arbitrary than my demands to be recognized as Emperor of North America, all you’ve given is an argument that could justify absolutely any form of tyranny whatsoever. Don’t like the War on Drugs? Then leave the country or you’re accepting its legitimacy. Don’t like apartheid? Then leave the country or you’re consenting to it. Don’t like the Nuremberg Laws, Shariah, the gulag, the killing fields? Leave the country, or you are signing on to that social contract, and by God the terms of that contract will be enforced.

How are any of these arguments any different at all from the argument you’ve given to defend the legitimacy of enforcing the Constitution on non-voters or dissenters?

“After all, they had 200 years to make up their mind, not one month.”

Who had 200 years to make up their mind?

I sure didn’t. I was born into this mess, and stuck with the Constitution whether I liked it or not.

Neither did the people upon whom the Constitution was enforced at the time. They had a bit more than 8 months from when the arbitrary “convention” of New Hampshire ratified (June 21, 1788) and when the federal government began enforcing the terms of the new Constitution (March 4, 1789). (I’m referring to those that could leave at all, that is. You are aware that several million people were held in chattel slavery and would be hunted down if they so much as tried to leave, right?)

So, hey, I’ll even give you a whole year to pack up your shit and get out of North America before I crown myself Emperor, in accordance with my new unanimously-approved Constitution. That’s even better than what non-voters in 1788 got. Otherwise, I can assume that you are tacitly accepting my absolute imperial authority over you. Right?

“And I have a sneaking suspicion, in any event, that had they proposed such a situation as you just did, our founders would have been dead within a week.”

I don’t know that that’s true. If you play your cards right, you can get away with a lot in a context where you might not expect that you would; just look at Napoleon.

But in any case, so what? Are you claiming that the only reason my new Constitution fails to have the same authority that the old federal Constitution (which has just been repealed by a unanimous vote of everyone eligible) had, is that the substantive terms of the “contract” are bad? If so, I wonder what kind of “contract” becomes binding or non-binding depending on the substantive terms, but not on whether, you know, the “parties” ever actually consented, or were even asked.

If not, then what is the salient difference?