The Constitution of the United States is our civil covenant and it describes both the manner and extent of our federal government. Truly, the Constitution implies that the details of the Judiciary’s function were “to be worked out in practice” (O’Brien, 24), more than the other branches. The Branches of our government have certainly grown and morphed beyond their original outline because it has served the needs of the people to do so. But, the Constitution does not give the parameters for its own interpretation. The Constitution is not a document penned by a single person, but is a work of collective ingenuity. One person’s opinion of its intention in 1789 is no more binding than the notion that it is unbound from concrete principles. It means what it says. Though the Constitution is alterable and thus boundless in its limits, its words are not living organisms that morph with each new generation like subjective mutants. There are principles of governance that are stated clearly in it and are self evident when the words of the Constitution are taken at face value. The founders knew, however, that it could not serve all people in all times and built into the Constitution alterability by Amendment.
The Constitution is an outline of the federal government, its powers and principles. All modern readers pass their eyes over it with pre-conceived political sentiments and philosophical pre-suppositions; some with a reliance on the authority of history while others view it with a belief in deconstruction; forgetting all influences of tradition and history. Many believe that reason and the needs of modern man define the words of the Constitution and that it alters itself through the natural evolutionary process of our civics. What it evolves into is pre-supposed to be better than what it ceases being. Like Federalism and the party politics that grew out of the Constitution, there is no consensus as to how the fundamentals of our democracy work. Who has authority over the document that is our collective civic authority? How is that power institutionalized? Practiced? Altered? The discussion of Constitutional interpretation and judicial review are and will be focal points of disagreement and continue to be a hotbed of disunity for the citizens of the United States and their government.
Some form of judicial review is necessary to ensure that the federal government complies with its restrictions and mandates, however, that too often includes re-interpreting the Constitution’s meaning, which becomes an ad-hoc legislative act; creating new laws contrary to the process of law making outlined in the Constitution. Striking down unconstitutional laws and acts by the other branches of the government is important to our system of checks and balances but every member of our government who takes an oath to protect the Constitution is capable of interpreting and applying the Constitution, whether they reside in the Legislative, Judicial or Executive branches. Currently, the Legislative and Executive branches allow the Judiciary to have the final word on Constitutional questions, but this system is inadequate for a majoritarian government and the process needs to be reformed. Judicial review is synonymous with Constitutional interpretation and understanding the nature of interpretation teaches us about judicial review.
The plain text itself should be the foremost consideration in interpreting the Constitution, followed by the actions and statements of the bodies that created them. The interpretive process should not rely on “what do the words of the text mean in our time” (O’Brien, 78)? The words mean what they meant when they were written and if the needs of our civics have changed than those changes should be reflected via the Amendment process. But the Amendment process has always been too cumbersome and challenging for the revolutionaries in America.
Individual opinions can shed light on the Constitution’s meaning, but the nature of the Convention and Debates that formed and approved the Constitution were aimed at consolidating many opinions into one functional view. The language of the Constitution therefore satisfied several opinions and several opinions can still be satisfied by it. If an Anti-federalist and a federalist were satisfied with the same words, it should tell moderns something about the nature of its language. There is a great deal of variation within the orthodoxy of constitutional political theory. The language of the Constitution, once dealt with directly, could be clarified by reviewing the statements and acts of the state and national representative bodies that ratified and applied it. Those acts and laws that have been faithful to the original meaning of it should also be considered, but deciding on who was faithful is as challenging as agreeing on the original intent.
The clear meaning of the words should be the first and most important element of interpretation. This action is nearly impossible, given the modern tendency of stretching the vocabulary to include things that are not there. “Judicial review…is misleading, for today the term too often is synonymous with judicial activism and judicial revision…in its historic form, judicial review is protecting the Constitution through a judicial policing function whereby laws were judged against the clear meaning and original intentions of the Constitution” ( Barton, 263). Unfortunately, the Amendment Process is a difficult and strenuous task that has been subverted by easier means. Primarily by the process of altering the Constitution’s language to include modern issues, but also by discovering an obscure passage in the private letter of a founder that complies with a personal modern view and espousing it as political doctrine and sole Constitutional intention. A met-analysis of letters of the founders may yield more information but how Congress applied the Constitution in the years following its ratification is important to understanding it’s intent.
Each branch of the United States’ Government has sought to strengthen and defend its position and influence, including the Judiciary. “Consequently, if the Court ‘tested the waters’, advanced a new self-assigned power and failed to meet serious resistance, it simply consolidated its new gain. The result has been that, over a period of decades, the Court has succeeded in completely redefining its own constitutional role” (Barton, 267). This quote could describe the nature of each Branch of the U.S. Government, but the Judiciary does not answer to the ballot box. Leaving the only trumps of interpretation to the Judiciary is dangerous for Democracy in the United States. There must be new restrictions applied to its expanded powers because the current restrictions are not equitable to the task. It is necessary to have a watchman overseeing the actions of the Executive and Legislative branches, especially since the States have been rendered hopeless in doing so. But that process should not include overreach. Currently the Two parties use the Judiciary as a pawn in the power struggle of supremacy. The left should not check the right, but each Branch should stand up for what it views to be the proper application of the Constitution and a greater consensus must be reached in order to properly alter the Constitution to reflect modern political concerns. Most importantly, those changes must be made by the Amendment Process and not by judicial fiat.
Saturday, March 27, 2010
John Locke: explored and critiqued
Locke wrote his two influential political works during a time of social, religious and political upheaval in the 17th century. He lived during the English civil war, the beheading of Charles I, the Restoration and the crowning of William of Orange. In fact, “throughout his life men were but rarely unmoved by controversies of faith and of public duty” (Locke, 7). Locke was a puritan in the truest sense of the word; he desired to purify the Anglican Church and avoid schism and Protestant infighting. He was not a puritan separatist, but sought unity within Protestantism. His puritan upbringing, affirmation of the Anglican thirty-nine Articles, four years with the French Calvinist Huguenots and six years amongst the liberal-Calvinist Remonstrants in Holland, culminated in a strong desire for toleration among Protestant factions (Foster, 480-481). Locke was a theologian (Barton, 225) and as is custom among theologians, he wrote on a variety of subjects. His ideas do not fit neatly into categories of secular and sacred. Thus, to understand his political work, it must be studied in light of all his works (Reasonableness of Christianity, Essays and Notes on St. Paul’s Epistles, Letter Concerning Toleration, Essay Concerning Human Understanding and his Two Treatises on Government) and placed firmly within the long tradition of Calvinist political theory that gave rise to his thought. His ideas descend within the pale of covenant theology and Locke espoused a Christian worldview. He was not just a Christian, he was an apologist. He was not simply a Calvinist, he represented the first large step, in English puritan thought, away from the reformed faith in search of Christian principles founded on reason and not solely on revelation. He turned his back on mainstream Calvinist thought and looked forward, helping to usher in the Enlightenment.
James II ascended the throne with large amounts of support from the Tories and the Anglican Church; both the bishops in the House of Lords and the clergymen. The unwavering support came largely by the submission of the populace via the strong espousal of the divine right of kings (Dunning, 224-225); “the Duty of unresisting submission to the Lord’s anointed was kept before the English people in copious floods of sacerdotal literature” (Dunning, 224). The convocation of 1683 condemned “certain pernicious books and damnable doctrines destructive to the sacred persons of princes…among the doctrines thus condemned was that of the origin of civil government in popular contract of any sort” (Dunning, 224). This is the environment Locke found himself in. He fled abroad in 1683 when his long time friend and employer, the Earl of Shaftesbury, was accused in a plot to overthrow the King (Locke, 7). Locke did not return until the installation of William of Orange in 1689. Locke released his Treatises on Government to help justify William’s ascent (Morgan, 105-106).
Locke, like his American descendents, was concerned with the rights of Englishmen as they had long been established and handed down (Dunning 229,230) (Barton, 225)(Morgan, 105-106). “There is in Locke’s theory little that had not long been current coin in political philosophy” (Dunning, 229), it is also important to note that contrary to modern perception, Locke did not lead the espousal of republican ideals; rather the espousal of the Whig ideal of limited Monarchy (Dunning, 228).
Locke was concerned with how man knew things, epistemology, as much as what men thought. His “religion, no less and probably far more than the new science and new views of political authority deeply influenced Locke’s work” (Pearson, 247), though he was accused of being a deist by the extremely conservative Calvinist and hero of Puritan thought; John Edwards. Locke was a Christian Theologian, apologist (Locke, 8) and student of the continental magisterial reformers of the sixteenth century and their seventeenth century descendants. John Calvin sowed ideas in his institutes that grew in the minds of Beza, Holtman, Althusius, Richard Hooker and eventually Locke; which influenced the Dutch Declaration, Puritan Constitutional formulations in England, Scotland and the colonies by the “Calvinistic habit of embodying convictions in written form and working institutions” (Foster, 489). Protestant confessional documents articulated theological principles to embody their beliefs in their ecclesiastical magisteriam. In the same fashion, later Calvinist political thinkers formulated their constitutional documents to embody their beliefs in the Political Magisteriam (Foster, 489) as did Cromwell in the Instrument of Government, the Pilgrims Mayflower Compact (et.al. Eliot, 59-60, 106-118) and Locke’s involvement with the Carolina Constitution.
It is easy to define Locke’s role in political anthropology as secularizing covenant political theory; severing its ties from the firmer principles of Biblical Theology (Baker, 39). We find in Locke the turning point in Liberal Calvinist political thought. He begins what the founders of The United States perfected; the move away from explicit biblical formulations to implicit, assuming the Protestant worldview in the descendents of his thoughts. In philosophical formulations, most modern philosophers would be shocked to know “that so heavily did Locke draw from the Bible in developing his political theories, that in his first treatise on government, he invoked the Bible in one thousand three hundred and forty nine references” (Barton, 225).Without a background in the Bible and once his two Treaties on political thought are divorced from his other writings, it is easier to reconcile them with modern secular, political theory. “Both Locke and Hobbes created their theories on the bases of rational principle; neither appealed directly to tradition nor to biblical principles” (Baker, 37). The firm place of rationalism in modern political theory was founded by Hobbes and Locke (Baker, 2000) (Brogan, 79).
Without a fuller understanding of his explicit theological work, Locke’s natural law theories are confusing to modern Theocrats within Christianity, even so far as being anathema. While his influence on modern rationalistic formulations as the bedrock of political theory has descended from him and grown up into the abandonment of Meta-ethical formulations of rights. As Dr. Clayton points out, and is foundational to modern thought, it is difficult to found philosophical formulations on human nature and God because the two cannot be measured or established on empirical evidence. This gave rise to Mills Utilitarianism and is the foundational presupposition in modern political theory. Rawls states the principle; “public conceptions of justice should be, so far as possible, independent of controversial philosophical and religious doctrines…the public conception of justice is to be political, not metaphysical” (Rawls, 186) and Sandel states the application; “government should be neutral toward the moral and religious views its citizens espouse” (Sandel, 224). The modern world has firmly set philosophical subjects in sacred and secular spheres.
The covenant that God made with Adam in the Garden has no weight in formulating the nature of public utility, nor do the formulations we make about the nature of the bread and wine in Communion effect the tacit agreement we have entered into as citizens. For Locke, it did and that separates him completely from Mills and Rawls. Locke’s understanding, as a Calvinist, of the Triune God informed his formulations, whether he explicitly stated it or not, because he lived in an age when one’s religion was all encompassing and his body of work expresses his view of the world, man and man’s political economy in light of the Protestant worldview. Though he sought to unify his faith and reason, he was influenced in all areas of life and understanding by his firm knowledge of his Eternal King.
James II ascended the throne with large amounts of support from the Tories and the Anglican Church; both the bishops in the House of Lords and the clergymen. The unwavering support came largely by the submission of the populace via the strong espousal of the divine right of kings (Dunning, 224-225); “the Duty of unresisting submission to the Lord’s anointed was kept before the English people in copious floods of sacerdotal literature” (Dunning, 224). The convocation of 1683 condemned “certain pernicious books and damnable doctrines destructive to the sacred persons of princes…among the doctrines thus condemned was that of the origin of civil government in popular contract of any sort” (Dunning, 224). This is the environment Locke found himself in. He fled abroad in 1683 when his long time friend and employer, the Earl of Shaftesbury, was accused in a plot to overthrow the King (Locke, 7). Locke did not return until the installation of William of Orange in 1689. Locke released his Treatises on Government to help justify William’s ascent (Morgan, 105-106).
Locke, like his American descendents, was concerned with the rights of Englishmen as they had long been established and handed down (Dunning 229,230) (Barton, 225)(Morgan, 105-106). “There is in Locke’s theory little that had not long been current coin in political philosophy” (Dunning, 229), it is also important to note that contrary to modern perception, Locke did not lead the espousal of republican ideals; rather the espousal of the Whig ideal of limited Monarchy (Dunning, 228).
Locke was concerned with how man knew things, epistemology, as much as what men thought. His “religion, no less and probably far more than the new science and new views of political authority deeply influenced Locke’s work” (Pearson, 247), though he was accused of being a deist by the extremely conservative Calvinist and hero of Puritan thought; John Edwards. Locke was a Christian Theologian, apologist (Locke, 8) and student of the continental magisterial reformers of the sixteenth century and their seventeenth century descendants. John Calvin sowed ideas in his institutes that grew in the minds of Beza, Holtman, Althusius, Richard Hooker and eventually Locke; which influenced the Dutch Declaration, Puritan Constitutional formulations in England, Scotland and the colonies by the “Calvinistic habit of embodying convictions in written form and working institutions” (Foster, 489). Protestant confessional documents articulated theological principles to embody their beliefs in their ecclesiastical magisteriam. In the same fashion, later Calvinist political thinkers formulated their constitutional documents to embody their beliefs in the Political Magisteriam (Foster, 489) as did Cromwell in the Instrument of Government, the Pilgrims Mayflower Compact (et.al. Eliot, 59-60, 106-118) and Locke’s involvement with the Carolina Constitution.
It is easy to define Locke’s role in political anthropology as secularizing covenant political theory; severing its ties from the firmer principles of Biblical Theology (Baker, 39). We find in Locke the turning point in Liberal Calvinist political thought. He begins what the founders of The United States perfected; the move away from explicit biblical formulations to implicit, assuming the Protestant worldview in the descendents of his thoughts. In philosophical formulations, most modern philosophers would be shocked to know “that so heavily did Locke draw from the Bible in developing his political theories, that in his first treatise on government, he invoked the Bible in one thousand three hundred and forty nine references” (Barton, 225).Without a background in the Bible and once his two Treaties on political thought are divorced from his other writings, it is easier to reconcile them with modern secular, political theory. “Both Locke and Hobbes created their theories on the bases of rational principle; neither appealed directly to tradition nor to biblical principles” (Baker, 37). The firm place of rationalism in modern political theory was founded by Hobbes and Locke (Baker, 2000) (Brogan, 79).
Without a fuller understanding of his explicit theological work, Locke’s natural law theories are confusing to modern Theocrats within Christianity, even so far as being anathema. While his influence on modern rationalistic formulations as the bedrock of political theory has descended from him and grown up into the abandonment of Meta-ethical formulations of rights. As Dr. Clayton points out, and is foundational to modern thought, it is difficult to found philosophical formulations on human nature and God because the two cannot be measured or established on empirical evidence. This gave rise to Mills Utilitarianism and is the foundational presupposition in modern political theory. Rawls states the principle; “public conceptions of justice should be, so far as possible, independent of controversial philosophical and religious doctrines…the public conception of justice is to be political, not metaphysical” (Rawls, 186) and Sandel states the application; “government should be neutral toward the moral and religious views its citizens espouse” (Sandel, 224). The modern world has firmly set philosophical subjects in sacred and secular spheres.
The covenant that God made with Adam in the Garden has no weight in formulating the nature of public utility, nor do the formulations we make about the nature of the bread and wine in Communion effect the tacit agreement we have entered into as citizens. For Locke, it did and that separates him completely from Mills and Rawls. Locke’s understanding, as a Calvinist, of the Triune God informed his formulations, whether he explicitly stated it or not, because he lived in an age when one’s religion was all encompassing and his body of work expresses his view of the world, man and man’s political economy in light of the Protestant worldview. Though he sought to unify his faith and reason, he was influenced in all areas of life and understanding by his firm knowledge of his Eternal King.
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