The Coming Constitutional Debate

Those who visit this blog have noticed the liberty by which cultural issues are addressed.  Since the arrival of Pope John Paul II, moral imperatives have taken center stage in both cultural and theological debates.  For those untrained in theology, the question of the ‘moral’, the creation of norms, the development of conscience and several other related topics are all primarily informed from one premise:  the primacy of human freedom.

Keeping human freedom human means defending natural law.  The coming constitutional debate is about replacing natural law with the primacy of positive law.  Their are unambiguous challenges in eliminating natural law as the primary hermeneutical (interpretive) analogue informing how we understand American exceptionalism, the Declaration and the Constitution.  I would like to present the six popular theories that dominate those who advocate a ‘living constitution’ and the perils of such a challenge.

The issue at stake is simple to understand:  we are looking at the diminishment of the democratic and representative process of American governance.  It is the replacement of a system of republican government in which the constitution is largely focused upon the architecture of government in order to minimize the abuse of power.  What proponents seek is a system of judicial governance in which substantive policy outcomes are increasingly determined from unelected federal judges.  This is about compelling specific outcomes uninformed from natural law.  We are a representative republic that historically understands how political passions and referendums can overwhelm any architecture of governance.  Our Founding Fathers have written extensively on this subject.  Simply put, if those who desire such change win, then the experiment known as America will fail because we will resemble the despotic regimes across the world.

Privileges Or Immunities Clause

After the Civil War and Reconstruction, the privileges or immunities clause of the 14th Amendment was largely understood as protecting a limited array of rights that are a function of American citizenship, such as the right to be heard in court or diplomatic protection.  This clause is the bulwark of American Federalism.  The Supreme Court in 1873 rejected an argument which demanded that the clause protect rights that are a function of state citizenship.  Madison understood the limitation of a bipartite government as proposed in the failed Articles of Confederation.  But a considerable amount of federal judicial authority has been achieved through liberal interpretations of the due process clause of the 14th Amendment.  Contemporary proponents of a ‘living constitution’ seek additional federal oversight of state and local laws.  This alone is itself is not the challenge, but coupled with abandoning natural law as an informing predicate it’s wildly dangerous.  The effect is to impose ever broader and more stultifying uniformity upon the nation.  Whatever modicum of federalism remains must abide within the tradition of natural law.

Positive Rights

The 21st century constitutionalist has redressed the nature of government into a charter of affirmative governance guaranteeing positive rights.  It is here that populist concepts of redistributive justice, political and economic justice override the traditional informing status of natural law.  We in the West elevate personal grievances from a therapeutic ethos thereby joining individual rights premises of the Constitution to ‘PROCEDURAL’ focus.  Eric Voegelin has written extensively on this matter, especially on the dangers of criminalizing political differences.  In a word, fascism is on political display.

If such liberal constitutionalist conceptions have sway this nation becomes extremely susceptible to continuous revolution, a revolution entirely different from the moral and ethical one our Founders fought.  Here, unelected federal judges will solicit and guarantee egalitarian propositions supplanting representative government.  Will we produce the intellectual architecture to produce an America of an entitled citizenry?

In this Brave New Constitutional World the state action doctrine will be eliminated.  Viewed as anachronistic, federalism requires state action as a positive precondition for the enforcement of any enumerated right. With it eliminated, an extreme egalitarian ethos will dominate both public and private institutions.  De facto eliminated of any distinction between public and private institutions is guaranteed!  This means tuition, admissions, faculty, hiring, curriculum and even discipline must receive not only scrutiny but the political imprimatur of unelected federal officials.

Political Questions

Our Constitution explicitly advances enumerated, limited powers.  Even separation of powers.  But the modernists love of the pursuit of ever more power is ingratiated within the advance of such opponents.

Since the beginning of the Republic, we have recognized the limited role of the judiciary.  Matters regarding national defense and foreign policy are non-justiciable.  Even the 1803 Marbury v. Madison recognized the chief political character of such questions as explicitly denied to the judiciary.

Ninth Amendment

The enumeration in the Constitution of ‘certain rights, shall not be construed to deny or disparage others retained by the people.’  For 21st century constitutionalists this is understood to say that there is some unknown array of unenumerated rights that lie fallow in the Constitution, waiting to be unearthed by judges.  Here, such people are looking beyond the substantive commands of the Constitution to secure ideals uninformed from natural law.  Rights to abortion, contraception, homosexual behavior other similar sexual privacy rights have all been imposed on the American Republic.

The more conventional understanding of the Ninth Amendment is its relation to the Bill of Rights.  By this understanding, the Ninth Amendment was written to dispel any implication that by the specification of particular rights in the Bill of Rights, the people of the Republic had implicitly relinquished to the new federal government rights not specified but informed from natural law nonetheless.  The Ninth was written to enforce an understanding of limited enumerated powers.  Its principal effect was to prevent the extension of federal power, not to provide an open ended grant of judicial authority.

The threats to our Constitution are many, but only a return to natural law and a moral understanding of our Revolution can prevent 21st century constitutionalists from hijacking our experiment in liberty.

About William Holland

Systematic Theologian/International Relations
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