Principal Questions for this Course:
*What is government? What is it not?
*What is politics? What is it not?
*What are states? What are they not?
*What are nations? What are they not?
*What is freedom? What is it not?
*What are rights? What are they not?
*What is justice? What is it not?
*What is law? What is it not?
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GOVERNMENT
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LAW
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POLITICS
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JUSTICE
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RIGHTS
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EQUALITY
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Something cannot both be and not be at the same
time…Therefore, rights are something and they are not something, justice is
something and is not something, etc.
I. What is Politics?—
a. Process by which society resolves conflicts
i. Conflicts over beliefs (ethics and morals)
ii. Conflicts over society’s goals (e.g., central government vs. local control; to improve general living conditions vs. to improve the total person)
iii. Conflicts over scarce resources (government benefits; property rights; environmental issues)
b. Process by which society allocates common values (the lawmaking process results in generally applicable regulations and restrictions that everyone consents to abide by; lowest common denominator of moral standards, but other organizations [e.g. churches, social clubs, service organizations, charities] are expected to exceed the governmental standard]).
c. Process by which society distributes property and resources (who gets what, when, and how)
II. What is Government?—the machine that the machine that guides the political process and enforces the decisions reached by the political process. (cf. Locke’s judges)
Authority—those features of the leadership/institutions that compel obedience; linked with government legitimacy
Legitimacy—status of leadership/institutions in the eyes of the people; in democracies it is conferred by the people and ensured by willful, voluntary obedience to laws made by the acceptable process; in other regimes, it may be by virtue of birth/ bloodline, religion, etc. and ensured by more coercive measures (threats, purges, bribes, etc). Stronger legitimacy usually corresponds with freer societies (democracies, constitutional monarchies). Weaker legitimacy usually corresponds to more despotic societies (absolute monarchies, dictatorships, etc.).
III. Why do we have Government?—RULES MATTER: they can make us modify our behaviour. This ensures we look after our neighbor’s interests as well as our own or suffer consequences. Civil society demands some restrictions on human freedom if it is to be stable and secure. (If it were legal to murder indiscriminately without any judicial consequence, who would be alive today? If it were legal to steal, who could claim the right to own any private property for his/her own use? If it were legal to drive 140 miles per hour down the freeway, would it be safe or fair for the one person who wanted to drive 55 or could drive no faster or had to walk?)
a. Higher level of social complexity requires a more permanent institution to manage decision-making process (Aristotle’s association of associations => creation of the polis) ILLUSTRATE.
b. Ideally, Government is designed to provide stability while not becoming too rigid and incapable of adapting to time and circumstances.
Aristotle’s 6 Kinds of Governments/Regimes:
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Common Good |
Selfish Interest |
One |
Monarchy |
Tyranny |
Few |
Aristocracy |
Oligarchy |
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Many |
Polity/Timocracy |
Democracy |
“Common Good” is what is good for the people as it pertains to their association with one another. That is, it is what is good for the citizenry as a whole—e.g., the security of the state, civil justice, social peace and tranquility; it is not what is good for you, for you, for me, and for him individually apart from any connection to others in society—e.g., that we all have food to eat, clothes to wear, houses to live in, etc.
Monarchy is the best regime to act in the interest of the common good.—the monarch is to be the most virtuous person in society, wise and just, and wealthy, serving not himself but the common good. This is good for a utopian society where there is at least one supremely virtuous person alive to govern. The monarch’s office may be rotated so that all citizens have the opportunity to rule if all have the same virtuous qualities
Aristocracy is second-best—the rule of the virtuous few, who are not subject to whim and folly; they are wealthy and have good breeding and education and use their wealth and talents for the service of the common good.
Polity is third-best—mixed regime of oligarchic rich and landed-democratic poor. These factions check each other; though neither is virtuous, they cannot commit injustice because they do not have the sufficient numbers. Gives room for the middle class who are neither rich enough to exploit the poor nor poor enough to exploit the rich to control the government in conjunction with the virtuous few among the wealthy.
Democracy is the best of the worst—Democracy derived from demos (mob) and kratos (rule/authority). The masses of landless poor govern and seek to exploit the rich.
Oligarchy is the next-best of the worst—This is aristocracy corrupted. The elite rich who are not virtuous have co-opted the system and seek only their own benefit
Tyranny is the worst of the worst—This is monarchy corrupted. One unvirtuous individual controls all the government and exploits everyone for his own beneft.
*
Direct Democracy—rule of the people directly (e.g., New England Town Councils) rather than through elected representatives. Most effective in very small communities/societies. Subject to demagoguery/manipulation of popular prejudices; strictly majoritarian.
Republican Government—form of government in which
representatives are chosen by the people entitled to vote to represent them in
the political process. Reps. are not
necessarily chosen from among the general citizenry or by the entire population
or in free elections. Nor do they always have significant power. Both the
Representative Democracy—a republican form of government, representatives are chosen by the people from among the citizenry itself to make and enforce the laws and policies of the society. Everyone theoretically has the right to vote (there are some exceptions—unregistered, mentally challenged, felons, persons under the age of 18). Representatives are subject to the will of the people to keep them in office. Higher rates of change and citizen participation are likely. Stability is located in the institutions of government and legitimacy of the process, not in the personalities of the rulers.
I. What is the basis of US Government regime design?
A. Enlightenment Era Political Philosophy
a. John Locke: to have a government is to have known, authorized, impartial judges over all, whose judgments can be “executed” or enforced.
b. State
of
c. Laws of nature govern the state of nature
d. Laws of nature must be enforced, because not always are they obeyed
e. Enforcement of natural law means especially enforcement of natural rights (those conditions of natural law that have direct effect on oneself and on others’ lives)—life, liberty, property. Individuals are responsible only to God for matters of natural law that do not affect others (e.g., the first table of the Decalogue)—toleration/freedom of religion has modern origins in this thinking
f. Imposition of punishments, not in excess of natural-law limits of reparation or restraint (minimum necessary to produce the desired compensation or deterrence)
g. Each person in the state of nature is his own executioner of the law of nature
h. Difficulty arises because just execution of the law of nature requires impartiality and level-headedness
i. Self-enforcement produces violation of natural rights of others; limitations to punishment are exceeded
j. All people in a certain area come together to appoint judges—to be a government—to serve impartially
k. Judgments of the judges require enforcement if they are to be effective; people must therefore transfer the power of enforcement (executive power) to the community/society as a whole
l. Social contract or social covenant—mutual promise that transfers executive power from individuals to the community. When this contract is sealed, people have left the state of nature and have entered into the state of civil society
m. Entrance into civil society is not the same as setting up a government; once civil society is entered, it cannot be left. However, the form of government for a civil society may change as the people will it to change.
II. Declaration of
A. Lockean origins
a. Right of people to change their government and form a new one
b. Equality of all men as created
c. Inalienable rights: cannot be taken away by anyone because they are given by God to the individual (life, liberty, pursuit of happiness).
d. Government is established to guarantee these rights are protected
e. Government
is established by the consent of the governed; The people have a right
to change or abolish it and create a new one
f. Government may not be changed because of minor violations of natural law or on mere whim of the people. Substantial reasons must exist
g. It
is the right and duty of people living under long-established tyranny to
throw off the shackles and to create a new government
B. Government by consent of the governed; Colonies had not consented to King George’s taxations because they had no parliamentary representation
C. Revolution was over “home rule”—the question after declaring independence became “how do we implement home rule and who should rule”?
III. Origins of American Constitutionalism
A. States developed constitutions first (these greatly resembled their colonial charters)
i.
=> the expansion of suffrage (except in
1. Requirements for voter eligibility were eased (with some disapproval)
2. Provincial governments needed broader support.
3. Many provided for annual elections
a. Believed longer terms were incommensurate with representative democracy
b. Believed that the longer someone served as a rep., the more distant and elitist they would become
ii. Bills of rights were attached to state constitutions (these would later serve as examples for the national constitution)
iii. Provided for the separation of powers and checks and balances between the branches
1. Branches were not always equal
2. Legislature was often more powerful than the other two (executive and courts)
a. Legislatures were thought to most closely represent the will of the people (using Parliament as an historical example to follow)
iv. American Union was believed to be comprised of 13 sovereign and independent states
B. Articles of Confederation
i. Drafted to set the purpose of the Continental Congress and to enable the states to conduct the revolutionary war.
1. Congress’ five powers
a. Conduct foreign affairs (war and peace)
b. Control Indian affairs
c. Set standards of weights and measures and institute a national coinage
d. Settle disputes between the states
e. Conduct a postal service
2. Articles did not give Congress enough power to execute these responsibilities and to enforce their decisions (i.e., there was not a legal nor a bureaucratic mechanism to ensure Congress’ decisions were followed, nor was there a national police force or justice department)
a. Congress could not raise an army or navy on its own—it had to requisition the states, which then could refuse to send troops or could comply
b. Congress could not tax individuals
i. Had to requisition the states
ii. Had to borrow
iii. Had to sell public lands
iv. Had to print more money which led to inflation
c. Congress could not make laws that were binding on individuals; laws were simply advisories to the states that could be ignored altogether
d. Continental Congress’ laws required 2/3 majority (9 out of 13) votes in Congress to pass. Amendment to the Articles of Confederation required unanimous approval of the states’ legislatures
e. Congress’ members could serve only one-year terms—led to no experience or expertise in any political matter
f. There was no executive power at all
ii. Approved by the Continental Congress in 1777 and ratified in 1781—had no bill of rights, because it was unnecessary; the states were still sovereign
iii. There really was no nation as we know it under the Articles of Confederation
1. State powers under the Articles of Confederation
a. Retaliation against discriminatory trade practices of foreign powers (states set tariffs on foreign goods and on each other [sometimes higher than the foreign tariffs])
b. Coin money without permission of the Continental Congress
c. Make laws binding on individuals
d. Collect taxes
e. Raise militias
f. Engage in and regulate foreign trade
2. The
Union under the Articles of Confederation failed to solve quarrels between the
states, to eliminate territorial threats from Europe, to live up to her
treaties with
a. Factions battling in the state legislatures
i.
Religious factions (some states had official church
establishments—e.g.,
ii. Social classes (rich vs. poor)
iii.
Radical democratic principles (agrarian republic ideal
of Jefferson; everyone is equal and independent because each farms his own
land) vs. less sympathy for the majority rule (commercialism; experienced man
of affairs and business found in cities; gentlemanly class; fear that radical
democrats did not respect the rights of property or authority of government
[confiscation was still going on, new laws made it easier to escape what was
owed, states were deliberately causing inflation by printing more paper
money]). Shays Rebellion in
iv. Some reforms were put into practice (borrowing money replaced paper money printing; some departments established, etc.) => movement for more reforms and calling of the Constitutional Convention to draft amendments to the Articles of Confederation => New Constitution was really illegal (opponents cried aristocratic conspiracy); Americans ready to go to war with words with each other
Republican Government : government
without a king structured in such a way that the last word rests directly with
the whole body of eligible citizens. In
ancient
What is the U.S. Republican Method? People get the last word through three-stage process (established in 1787); original system was to keep the rich and poor from exploiting each other—property ownership stipulations set on voting rights.
Representative President Some executive
Eligible Citizens
Stage 1
End result is a very indirect process of republican government
Eligible citizens are those who are eligible to participate in politics (people may not have registered, are criminals, are children, etc.)
Women not eligible at first because they may have just doubled the influence of married men at the expense of single men—they weren’t as independent as they are today
Property ownership restrictions were set so that middle-class will elect the middle-class (poor may have voted the way the rich told them to do and thus => dominance by the rich because poor were dependent on the rich)
Poor would have suffered if given the right to vote because rich would dominate—poor were not in themselves independent.
Democracy Defined: from ancient to 18th
century it meant direct democracy (e.g. New England Town Hall Meetings, ancient
People made the laws, debated the laws, and did everything else (almost) the government was responsible for
Assemblies could not lead an army, maintain courts => need for executive magistrates.
Ancients believed that voting was oligarchic—rule by the few, usually rich who could use their influence; also considered to be a patron-client system (i.e. patron acts on behalf of the client); True democratic way was casting lots so that everyone had equal chance. Also must get rid of those most talented who may gain undue influence and respect thus leading to oligarchy.
Modern writers (e.g. Montesquieu and Madison) considered democracy a ‘bad thing.’ Today we like to use “democracy” more loosely (whether the government looks like the people get the last word).
A. Natural Rights: Government is legitimate only when it protects the rights given to all human beings by God.
a. Prominent
among Christians and Deists. Based
largely on John Locke; advocated in
b. Locke argued that human beings were sent to serve their creator => concept of natural rights (we belong to God alone)
c. Natural rights cannot be taken away (even if government violates them); positive rights are those only the government gives you
d. Purpose of Government is to protect natural rights of people
e. Anti-Federalists believed the proposed Constitution violated and/or endangered natural rights rather than supporting them
B. The Consent Thesis: Unless the citizens consent to the form of government, it has no right to rule.
a. Has nothing to do with who is ruling
b. Goes back as far as ancient times, becomes strongest in Medieval times
c. Federalists and Anti-federalists quarreled about how consent was to be given—how do you know there is consent among the people and who can give consent?
d. Anti-federalists argued that state governments were spokespersons for the people because they had already given consent to that government.
C. Civic Virtue Thesis: A republic cannot be maintained without a virtuous citizenry
a. Someone is needed to govern over the people if they could not maintain moral responsibility.
b. People were to be dedicated to the law and willing to put common good ahead of selfish interests; required absence of vices bad for the community (e.g. greed, lording it over people, etc.)
c. Federalists and Anti-federalists disagreed about where civic virtue was most likely to be found (Feds. thought city; Anti-feds thought rural areas)
D. Danger of Factions Thesis: Government should be so organized that it cannot be dominated by a clique or ‘faction.’
a. Federalists and Anti-federalists agreed we cannot have faction, but disagreed about which factions were worse for society
i. Anti-federalists worried about minorities trampling on majorities => aristocracy; Main cure was majority rule
ii. Federalists worried about majority trampling on rights of minority; main cure was majority rule with modifications
E. Federal Form Thesis: The best plan is neither a small republic, nor a large republic, but a league of many small republics acting together; such a league has the advantages of both with the disadvantages of neither
a. Federalists and Anti-federalists agreed but accused the other of not accepting it because they did not have the same interpretation
b. Federalists tilted toward more national government; Anti-federalists tilted toward more state government
F. Balance
of Orders Thesis: Justice can be maintained only where the two opposed social
orders are approximately equal in strength and balanced by a third, will all
three armed with legislative checks (e.g.,
a. The
third party is, in
b. John Adams thought of our system as similar to the British Parliament (poor more represented in the House, rich in the Senate, president performs the role of the king)
c. Anti-federalists
said that Adams’ theory was useless;
d. Balance would keep government weak enough not to become tyrannical => desire for gridlock
G. Separations of Functions Thesis: In order to prevent tyranny, every different government function—legislative, executive, and judicial—must be assigned to a different group of officials.
a. People who are legislators will not execute or judge, executive will not legislate and judge; judiciary will not legislate or execute.
b. Federalists and Anti-federalists agreed but differed on interpretation (Framers did not invent idea of separation of powers; they were criticized for violating it with the implementation of the veto, senate confirmation of presidential appointees, judicial review, etc).
c. Federalists said there must be a little overlap between functions as a form of self-defense
d. Anti-federalists wanted strict separation of functions—no overlap even for self-defense purposes
H. Simple Government Thesis: Self-rule requires a government structure so simple that it can be easily understood by every citizen
a. Our Constitution is very complicated—not in the number of words, but in the number of divisions it creates
b. Believers in this theory weren’t going to like the new Constitution; they thought the new government should be clear as glass; feared the new Constitution would lead to aristocracy
c. Many Anti-federalists did not want the government to control itself—believed people should control the government by simple majority rule
I. Representation Thesis: When the citizens cannot conduct government affairs in person, all governmental officials should be chosen by the direct vote of majority
a. Our Constitution does not satisfy this thesis (Senate and House are only bodies chosen by the majority of people)
b. One argument is that the more people have to vote for, the less self-government there is because no one knows who he is voting for.
J. The Commandment Thesis: The best way to limit government is through detailed lists of ‘Thou Shalts’ and ‘Thou Shalt Nots’
a. Federalists put faith in complex internal structures but not in sheer representation, or ‘Thou Shalt’/’Thou Shalt Nots’
b. Anti-federalists put much more faith into ‘Thou Shalt’/Thou Shalt Nots’ and less in complex structure. (They lost the fight for more “thou shalts” but won more “thou shalt nots” in the form of Bill of Rights);
c. Federalists opposed Bill of Rights because they believed when government power was limited, the implication was that the power exists, and thus there was a greater probability of tyranny.
K. Homogeneity Thesis: Republics should be small because for all of the people to reach agreement on the same set of laws, they must have the same bakground and way of life; large republic may have started out with self-rule but degenerates easily into something worse. (Predominantly an Anti-federalist theme)
L. Familiarity Thesis: Republics should be small because in order to maintain self-government each citizen must have first-hand knowledge of the qualifications of seeking office (Predominantly an Anti-federalist theme)
M. Security Thesis: Republics should be large because small republics can’t protect themselves (predominantly a Federalist theme); (Anti-federalists became suspicious every time when Federalists spoke of national defense; they were afraid standing army would be used to intimidate local populations or engage in wars of expansion; the AFs preferred local militias)
N. Cancellation Thesis: Republics should be large because though small republics always succumb to the domination of a majority or of a minority faction, in large ones, the various factions cancel each other out (see Balance of Orders Thesis; predominantly a Federalist theme)
Both Anti-Federalists and Federalists saw some merits in both sides => hybrid (but they clashed over structures of government). Federalists may have been the minority in most states.
Constitutionalism: formal understandings of how our government is to be structured to the extent of putting them on paper.
Constitution of
Courts decide constitutional law interpretation (very unusual—form of aristocracy?). Rules are never neutral—always affect outcomes.
Rules make certain people more likely to get what they want and others less likely to get their way. Give advantages to those with the greatest skills.
Rules do not always give advantages to groups for reasons irrelevant to the ‘game’s outcome’; give advantages to those most likely to work for the common good.
Prevent the many from doing as they
pleased to the few (this is what political rules are for in
Many constitutions are unwritten (e.g. British—more tradition than concrete structure). Some scholars say the U.S. Constitution is unwritten
“Constitution” used in more than one sense:
1. complete set of rules about power, organization of government and privileges of citizens (customs and traditions, e.g., presidential debates before elections, presidential speeches in times of national crises, Congressional chairmen appointed from party in the majority, judicial appointments are determined on ideology)
2. “legal constitution”: rules considered enforceable in courts of law (court precedents that are open to interpretation as well as written laws and statutes)
3. “written” constitution: rules set down in writing rather than left to custom or tradition (statutes and ordinances, bureaucratic regulations like the FAA or FCC)
4. “nominal” constitution: part of the rules that is, in name, the constitution (the US Constitution and the Bill of Rights)
Box Below represents the comprehensive constitution and all rules of every kind, everyday variety. Smaller box = comprehensive constitution exclusively. Smallest box = nominal constitution.
Written Written
Unenforceable Enforceable
Unwritten Unwritten
Founders’ Ideals, etc; Motivation
for Constitution.
1. Address current problems
2. Weaken state power and enhance National power
3. Limit powers of National government
Actors: States (factions within the states; i.e., farmers, merchants; North/South; coast/interior; slave owners/non-slave owners)
Interests: power (slavery; trade; taxation; etc.)
Resources: 1. power to “just say no” (factions have influence within the states to get power over the state)
2. Liberalism (idea of individual self-rights)
Constitutional
Preamble:
I. We the people: the people, not the states, are entitled to form their own government or change the form when they deem it in their best interest to do so
II. In order to form a more perfect union: what we had with the Articles of Confederation was good, but it could become better
III. Establish justice: Locke’s theory that government was established to secure natural rights from infringement
IV. Insure Domestic Tranquility: Quarrels between the states over tariffs and trade regulations; protect against rebellion like that of Daniel Shays, etc.
V. Provide for the Common Defense: Give Congress the power
of taxation in order to support a standing army (remember that the army had had
to be disbanded due to a lack of funding under the Articles of Confederation);
threats were still common from
VI. Promote the General Welfare: searching for virtuous persons who would exercise their public virtue to ensure that everyone’s natural rights were protected under law and that more than their own interests were protected
VII. Secure the Blessings of Liberty to ourselves and our posterity: ensure maximum freedom in relation to one another; not allow national government too much power—provided limited government and a lasting foundation of government
VIII. Do ordain and establish this Constitution for the
How Does
the Constitution Solve the Problems of the Articles of Confederation?
I. Separation of Powers within the National Government
A. Legislative Branch
a. Congress has ability to impose taxes and collect duties
b. Congress may coin money (power taken from the states)
c. Congress is given power to regulate interstate commerce
d. Congress can establish uniform weights and measures
e. Congress can provide for a common defense
f. Congress alone can declare war
g. Congress can create post roads and post offices
B. Executive Branch
a. President has power to make treaties
b. President may appoint foreign ambassadors
C. Judiciary Branch
a. Federal judiciary gets original jurisdiction in disputes between the states
II. National Government Given Sufficient Amount of Power
A. “Necessary and Proper” clause (a.k.a. “elastic clause”)
B. Executive can appoint the judiciary
III. National Government Prevented from Becoming too Powerful
A. Allow states to establish local courts, power to regulate intrastate commerce, power to incorporate cities.
B. States may set up taxation laws within their own borders, e.g. sales taxes
C. States can borrow money or have bond issues
D. States may charter banks
IV. Checks and Balances
A. Legislative Checks
a. Congress can override presidential veto by 2/3 vote in each house
b. Congress can impeach executive and appointees (e.g. justices, cabinet members, etc.)
c. Congress must approve of presidential appointments
d. Congress must ratify treaties by 2/3 vote
B. Executive Checks
a. Veto power over congressional bills
b. Appointive power over judiciary
c. Refusal to enforce existing laws or court decisions
C. Judiciary Checks
a. Judicial review established by Marbury v. Madison, 1803
b. Judiciary may rule on executive action
D. Additional Checks
a. House elected ever two years, by direct vote of the people
b. Senate up for election every 6 years, 1/3 of the Senate is up for vote every 2 years (State legislatures chose senators under the original Constitution, now Senators are chosen by direct vote of the people) Senate maintains more continuity and is more capable of moderating the passions of the House
c. President is elected by the Electoral College every 4 years; Members of the Congress may not be members of the Electoral College
d. Judiciary is appointed for lifetime tenure (provided they are on good behavior)
E. Amendment process made easier
a. New Constitution required only ¾ of the states to ratify before going into effect (i.e., before the organization of Congress could begin)
b.
Sovereignty was shifting from the states to the
national government—centralization
1.
Congress proposes the additional constitutional
amendments and votes (requires 2/3 majority to pass in each chamber)
2.
State legislatures vote yea or nay—3/4 must vote
yea for amendment to go into effect.
Arkes, Hadley.
Beyond the Constitution. Princeton:
6. lack of focus on substantive moral grounds => continued
juristic fictions
--does
not explain grounds for laws
--contrivances
cannot explain why some things are seen as wrongs needing govt. vindication
7.
–govt expansion under Commerce Clause
Govt lawyers act as though the Federal government is fully competent to
act—but they do not (consequently) articulate grounds for their belief apart
from false rationalizations
8.
Liberal justification of intrusion into privacy if to rectify racial
discrimination and rejection of intrusion into privacy to protect newborns’
medical interests
Various
political interests often produce reconceptions of
the federal govt. as necessary to fit the agenda
9. Fictions
of federalism have forced federal govt. to travel awkward paths to extend its
powers
--law
begins with a recognition of a wrong to justify
restraint or punishment
--Congress
has broken the connection between moral judgment and legislation—does not
punish those who commit wrongs and instead leaves that up to the states. (but govt. responsibility is to punish wrong)
--laws
that forbid but do not punish are dubious in that they exude a doubt about the
wrongness of the acts they proscribe or they question the fed. govt’s. competence
in the areas they reach
10.
Modern lawyers more bound to the words of the constitution than founders or
lawyers of 19th century.
Need
to look beyond Const. to speak of principles defining just and unjust, good and
bad regimes—e.g, the principles of natural justice
11.—Const.
itself is founded upon natural principles of justice/right (cf. McInerny/Aquinas on Human Action, p. 139—natural
right is giving an amount equal to what one gets; absolutes as in the
male/female relationship, and non-absolutes but stemming from something
consequent upon it, as with property rights; natural right is “what nature hath
taught all animals.”)
Modern
j/p is suspicious of appeals to natural justice
--founding
era and 19th c. accepted absolutes of natural rights
--modern era suspicious of absolutes, does not use idea of natural justice in same way—tendency to deny that any ‘truths’ inhere in the Constitution—move beyond the Constitution (in a dangerous way)
12.—modern liberals begin from premises contrary to those of the Founders—end up detaching rights from claims to moral truths—relativizes truth as culturally shared convictions
13.—shift from natural rights to Anglo-American tradition, from the universal to the particular and contextual
Modern project of liberation depends on rejection of moral absolutes as spurious and reactionary claims
--rejection of governments’ right to legislate morality
--govt. is not competent to know what is morally right
--liberals nevertheless do legislate morality if it fits their agenda to do so
--Conservative opposition to ‘natural justice’ and use of moral language in politics stems from liberal tendency to use it for its own purposes. (=> championing of legal positivism)
--Both libs. and cons. believe that disagreement on moral questions proves absence of moral absolutes (this position is self-refuting—makes an absolute out of a notion that there are no absolutes).
15. --make right and wrong a matter of majority opinion
--conservatism has attached itself to legal positivism and will thereby undo itself (as the libs. have already done)
17. Constitution comprehensible only in moral terms—antecedent to the written text
--application of Const. requires appeal to underlying moral standards
18. Objection to Bill of Rights
--it would obscure the foundation of the constitution in natural rights
--detaches rights from moral grounds
--narrow the range of protected rights