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Tuesday, August 28, 2007

No man, not even the sovereign, is above the law

We need to be guided more by the common good, based on the natural law
Contracts, Constitutions, and Outsiders By Morning's Minion
Vox Nova Monday, August 27, 2007 9:12 AM Labels: , Comments (25)
Since I'm reading Toqueville presently, this theme is coming up. Another problem with social contracts and more broadly constitutions is that they aren't organic. I'm not sure immigration is the best example given that any social covenant on that topic is to a significant degree reflective of the intrinsic cohesive nature of peoples. Additionally, significantly restrictive immigration measures didn't manifest themselves here until the 1930s, although one kind find more localized examples. For example, California was very anti-Chinese immigrant in policy and low until the construction of the Central Pacific Railroad.M.Z. Forrest Homepage 08.27.07 - 11:55 am #

natural law cannot enforce itself!i recommend Tom West's "Vindicating the Founders" for a deeper understanding of the Constitution.more generally, political philosophy would help broaden your understanding of the political nature and limits of man.Father James Schall of Georgetown is a great guide to this discipline. I recommend his "Another Sort of Learning"zach 08.27.07 - 11:56 am #

Organic communities underpinned by the common good cannot exist without the following:- the obligation to those closest to us in the communities where we reside- the obligation of civil authorities to protect those communities in their careThursday is exactly right:Law and order are the first duty of the state. Military strength is necessary to preserve peace. Handouts to the poor are a moral hazard and often do cause more harm than good. It may not be pleasant to say it, but in this realm as in others, two and two really do equal four.http://manwhoisthursday.blogspot.comI wish it weren't so, but "open borders" are harmful to the advancement of these things, and it is not in the slightest anti-Christian or anti-Catholic, even as there are arguments about details. We have to resist the utopian, brotherhood of man mindset, even as we love our neighbor....jonathanjones02 08.27.07 - 12:02 pm #

If you have a chance, read some de Maistre. While I give some of his thoughts on constitutions, you should read his essays as a whole; they are very insightful and provide much support for MM's post.Henry Karlson 08.27.07 - 12:06 pm #

I am assuming there is a large literature on this on the domain of political philosphy, and thanks for the references. The post was prompted by own attempt to grapple at what I see are the problems with "constitutionalism". It is very much the musings of an amateur. But I think it is an incredibly important topic worthy of further debate.Morning's Minion Homepage 08.27.07 - 12:14 pm #

"Military strength is necessary to preserve peace"Something vaguely Orwellian here. As for the "handouts for the poor" thing, nobody is arguing that moral hazard can be an issue, abd must be taken into account in the policy debate. But it most certainly is not an excuse for ignoring God's call toward the preferential option for the poor, and that often means removing the blinkers of liberal ideology (and I use that term, as always, in its true meaning, not its debased and worthless US form). And yes, our duty to the poor has a public as well as a private dimension. Consider this:"In many respects, democratic socialism was and is close to Catholic social doctrine and has in any case made a remarkable contribution to the formation of a social consciousness.”-- Cardinal Ratzinger, 2004.Morning's Minion Homepage 08.27.07 - 12:17 pm #

"Military strength is necessary to preserve peace"Something vaguely Orwellian here."Perhaps if "Orwellian" in this context means "based upon all prior history" or "common sense".Donald R. McClarey 08.27.07 - 12:42 pm #

1. Democratic socialists - and certainly the European ones - are not absolute pacifists (which is an honorable intellectual tradition). 2. No argument here about the details of military intervention, only that uncomfortable realities should keep utopian ideals on their toes, which is the small point Thursday was making (much better than I could - bookmark him).jonathanjones02 08.27.07 - 12:45 pm #

Very Interesting post. Of course I suppose that all written constitutions will be deficient is some regard.That being said it must be pointed out the Non American Citizens do have rights in the USA under that document. The internment of the Japanesse Americans went against the entire ethos of the DocumentI am of course a big fan of the Constitution. I think it works fairly well. I really don't see how people living abroad how a right to the same protections against survelliance we do. It must be remembered that true the Const spells out rights. Even though really the document limits Govt. That being said it is a two way street. For people to recieve the rights under the Const there would be obligations. I am pretty sure most non USA citizens would object to that.However this really hits on something else. I had Justice Kennedy come lecture my callss back in college. He talks about "rights" and why they were important. However he talked about why certain "rights" were not in the Const. That is for instance the "right to a job" and the "right to health care" and the "right to a education" or more specifically laid out in a explict way. It was because Const do a bad job of that and it is not the place to doJH Homepage 08.27.07 - 1:06 pm #

The main reason why I believe a written constitution to be an asset is that it sets out, in very specific terms, what the government can and cannot do. Furthermore, it is difficult to change. Of course, this can also be a liability, if the constitution is unjust (slavery being, of course, the perfect example). But I believe a written constitution to be preferable to a constitution that can be changed easily at any time, such as Great Britain's. When I think of some of the things that Congress has done in the past 8 years or some of the things that our Legislature in Pennsylvania has done in the past few years, I would find it terrifying to know that a group of legislators in Washington could sweep away my basic rights in one vote.Matthew Kennel 08.27.07 - 1:22 pm #

De Maistre, on the other hand, points out once you have such a document, people begin to argue over the meaning of the words, slowly eroding rights which were believed before the document was produced (because they would not be written into it if they were not) yet afterwards, can be lost and argued away. Look to the history of American Constitutional thought as to whether you think de Maistre's is correct. I think he is.Henry Karlson 08.27.07 - 2:02 pm #

"I am of course a big fan of the Constitution. I think it works fairly well."I suppose it works fairly well if you are born. Personally I think that one of the big lessons of Roe v Wade is that the constitution is an utter failure.ben 08.27.07 - 2:39 pm #

Ben-Four points. First, Roe v. Wade is not a failure of the Constitution; it's a failure of the Supreme Court.Second, the Constitution was not meant to address every societal issue. That's the purpose of having a federalist system. Some matters are better left to the States.Third, abortion was not prevalent at the time of the founding, and as such the founders almost certainly did not even consider addressing the practice in the Constitution.Fourth, there is a fairly strong argument that the unborn are, as an original matter, protected under the Constitution. If you are really interested in the matter, I will try to provide you with some reading material on the subject.Alexham Homepage 08.27.07 - 3:13 pm #

BTW, fwiw, I am for a Human Life Amendment to the Constitution to specifically outlaw abortion in all instances.Alexham Homepage 08.27.07 - 3:15 pm #

Ben: I would be interested to hear more about why you think Roe v Wade renders the constitution an "utter failure."It perhaps exposed some limitations on what the constitution can do, or perhaps how it can be (mis)interpreted...but I don't see comprehensive failure being demonstrated by that infamous decision.Matt Talbot Homepage 08.27.07 - 3:17 pm #

The supposed genius of the constitution is that it was to protect the people from the abuses of government. The constitution of the United States is termed better than or superior to the constitutions of other states because under this system we have been protected from various forms of tyranny.Simply put, this track record came to a screeching halt in 1973. We can no longer say that we live in a state where the rights of all are protected. We can no longer say that we live in a state that is free of grievous human rights abuses. US constitutionalism has proven no better than other political systems as preserving rights. It is most certainly no better on that score than the monarchy it replaced.You can say what you want about Roe having been wrongly decided. But the fact of the matter is that the constitution left it to the court to wrongly interpret the law.The constitution failed because it did not protect and has not protected the poeple from judicial tyranny.The judicial tyranny that has resulted in the murder of over 40 million Americans is a tyranny more real and more viscious than anything that came from King George.ben 08.27.07 - 3:44 pm #

Ben,Or we can go back to something even more basic and primal -- the Constitution still allowed for slavery. That shows it did not protect human rights -- it only protected the interests of a specific group of people.Henry Karlson 08.27.07 - 4:16 pm #

Henry,You could make a very good case that the Constitution deliberately includes the means to end slavery - something not politically feasible at the time.jonathanjones02 08.27.07 - 5:08 pm #

I think there is certainly no problem with using the constitution as a means to an end. The problem is treating it as an end in itself, like a secular sola scriptura. I would say the same thing about the UK's unwritten constitution (I find the "muddling through" approach far more satisfactory, but that's just my personal preference).Morning's Minion Homepage 08.27.07 - 5:11 pm #

It doesn't change the fact that men aren't governed by paper. The case ending school segregation even though laudable would have been laughed at by men like Jefferson and others who wrote the Constitution. In the end rulers serve either God or their own interests. Heck, we haven't had a properly declared war since WWII.M.Z. Forrest Homepage 08.27.07 - 5:13 pm #

The fact of the matter is, though, that it is not a failure of our Constitution as a written instrument that allowed for abortion. It was unjust men, acting under our Constitution, that allowed for that. Sure, the Constitution can be misconstrued in that way, but other forms of government can and do allow for such abuses when they are run by unjust men. It is a weakness of our constitution that it cannot be quickly and easily amended to deal with these injustices, but perhaps (and please not that I said PERHAPS) that is something we have to deal with in order to get the benefit of having rights protected in a more permenant fashion.
I disagree with Henry when he follows Da Maistre's opinion with regard to the whittling away of rights. While this may happen in some cases, in others it may happen that rights which were at first applied more sparingly are later applied more liberally. The first example of this is free speech. I have a hard time believing that the Founders really intended such that right to give the freedom to produce pornography. The second example is equal protection, as is given in the 14th amendment. At first, this was applied by the philosophy of having races be "seperate but equal", but now it is construed that seperation of the races is not implied. I don't think that bringing up legal arguments made by the Bush administration is really proof against the constitution. How can you take seriously an Administration that argues that the Constitution does not grant the writ of Habeus Corpus? Any attentive 8th grade civics student could tell you that that notion is preposterous.
The bottom line is this. So far as I am concerned, the main advancement of modern democratic governments over ancient forms of government is the idea that no man, not even the sovereign, is above the law. The best way that I have seen to ensure that is that there should be a written and set law that even the government must follow. Sure, it won't work perfectly, but then, to quote James Madison in Federalist 51, "If men were angels, no government would be necessary."Matthew Kennel 08.27.07 - 5:32 pm #

"The problem is treating it as an end in itself, like a secular sola scriptura."That's very true. Matthew Kennel 08.27.07 - 5:36 pm #

MZ-"The case ending school segregation even though laudable would have been laughed at by men like Jefferson and others who wrote the Constitution."But not necessarily by all of the men who wrote and ratified the 14th Amendment.Alexham Homepage 08.27.07 - 6:19 pm #

Of course if one wanted to go to the extrem we could say "Hey look at the Bible-" It has not protected us from evils andin fact evils have been done in its name. Of course this does not invalidate scripture.In the end the Const is not Holy Writ. However I do think it is a pretty darn good document. What is sometimes missing in allthis is a healthy robust Federalism. That itself has mixed track record on some issues. However I often wonder if many of the issues we talk about here should not seen through a Federalism lensjh Homepage 08.27.07 - 6:30 pm #

"In the end rulers serve either God or their own interests."Like most of us rulers sometimes serve God, sometimes their own interests, sometimes both, sometimes neither and sometimes they don't have a clue what God would want in a particular situation or how their own interest may be served. Without a written constitution we are completely dependent upon the wisdom of the present. Bad idea! Better to have a document that codifies the wisdom of the past. At worst it slows down goverment, often not a bad thing, and at best it is a guide that helps rulers avoid the worst mistakes. Donald R. McClarey 08.27.07 - 6:53 pm #

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