A century or two ago, a person you never knew, and whose only connection to you was that you currently live within a few thousand kilometres of where they did, said that people shouldn’t wear a hat inside on Sundays. And just because they wrote it down on paper, and some other people at the time thought it was a good idea, then you have a moral obligation today to not wear a hat inside on Sunday.
What’s more, even if you think not wearing hats inside on Sundays is a stupid rule, and even if lots of other people like you now agree, you still have no grounds to object when other people use threat of violence to ensure that you don’t wear a hat inside on Sundays.
Now if you think this is a ridiculous justification for political obligation then you’d be correct. Yet this line of reasoning - that we should obey the rules created by dead people - is exactly the same as the one used to justify constitutional authority. A rule is right or proper or legitimate - and we therefore have an obligation to obey it - if it exists in a constitution (or at least complies with earlier rules laid down in said constitution).
Obey dead people’s rules.
Really? There has to be some more normative weight to constitutional authority than this, but what that something more is is difficult to identify. One immediate qualification we could add is that we only obey dead people’s rules that were endorsed by everyone or a majority of people at sometime. Constitutions are typically ratified by referendum or some other democratic method so perhaps this gives the constitutional rules of dead people the necessary extra normative force that generic dead people’s rules don’t have over us today. So we should obey the dead people’s rule…
No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law”
…but it is in fact ok to wear a hat inside on Sundays. Now while this seams plausible enough for those who did actually ratify or support the rules at that time, it seems implausible that the mere consent of other dead people hundreds of years ago places moral obligations on us today.
Of course another qualification is that most constitutions provide mechanisms for their alteration and amendment. So we have obligations to obey these rules because we have the opportunity to change those rules. Our power to change their content means that their normative force carries over to future generations.
Yet these amendment mechanisms are themselves just dead people’s rules. What’s the normative justification for Australia’s majority of voters and majority of states vs a simple majority or a straight super-majority if that’s what we want today? The nature of the amendment mechanism plays an important causal role in determining what amendments can occur, and therefore the content of our current obligations, so it also needs its own justification of why it too should be obeyed, and one that is more that obey dead people’s rules.
So it seems that we need a normative justification for following these dead peoples rules that applies to us today. One that doesn’t just rely on historical obligations or reasons that applied to people in the past. And while there might well be a number of good reasons to follow the content of dead peoples rules, the fact that they exist in a constitution or statue is not in itself sufficient.