The idea of a higher law which governs legislation is an old one.
Besides regulating the division of authority, constitutions written to limit government must contain substantive rules. They need to establish general principles which will govern the specific acts of the legislature. Therefore the essence of a constitution involves not only a hierarchy of power and authority it also establishes a hierarchy of laws. The founding principles built into the structure of the document itself are of a general nature. They proceed from a higher authority designed to control the content of the later specific laws which are enacted by the representative and delegated legislature elected subsequent to the establishment of the constitutionally limited government.
The idea of a higher law which governs legislation is an old one. In the 1700s, at the time of the writing of our Constitution, it was known as the Law of Nature, the Law of God, or the Law of Reason. It was the idea of enshrining this higher law into a written constitution which would be the foundation for a real world government that was the genius of the Framers.
The difference between the Constitution and any subsequent law enacted by the government it founded is like the difference between laws in general and their specific application by the courts in a particular case. Just as a judicial ruling is considered sound, only if it is based upon the law and not on the mere opinion of the jurist, so too laws themselves are considered legitimate only if they conform to the higher law. In the same way that we want to prevent a judge from breaking from the law for some consideration of a specific person or idea so too we do not want the legislature to break the general rules to fulfill any immediate or temporary goals.
In the personal lives we all lead we know that often we are tempted to sacrifice long standing principles for immediate gain. This is a human trait that all share and only the highly disciplined avoid. So too legislatures, made up of fallible men, are therefore in desperate need of unbreakable higher laws which will constrain them from doing collectively what we all do individually.
Just as an individual will hesitate or at least contemplate the implications of violating a long held principle for an immediate gain so too a legitimate and responsible legislature will be reluctant to break established general laws for new specific aims. To violate a particular principle at a particular time for a specific purpose is different than saying that principle is null and void. Passing laws that either benefit or penalize specific people or making legislation retroactive is different than saying that to do so is correct. If a legislature passes laws which infringe upon the personal liberty or the property rights of individuals during a war or to achieve some monumental national goal is far different than stating that such rights can be infringed with impunity. It is to mark these differences that every piece of legislation is supposed to have a clause which identifies where the authority for it is found in the Constitution.
It is also for this purpose that general principles should not be promulgated by the legislature but instead by another body. It is appropriate that this other body should have a suitable time to deliberate so that any establishment or change in the general principles can be fully debated, considered, and amended if necessary.
It is not that a constitution provides an absolute limit on the will of the people. Looking to our Constitution, which is the model for all such documents which are truly meant to limit the power of government, there is the amendment process which has been used twenty seven times to change the higher laws of our general principles. Constitutions are meant to act as a check on the ability of a temporary majority from imposing its will in any manner it chooses. In other words, the social contract agreed to by the people who allow the governance of temporary and shifting majorities in particular situations is based upon the belief that every majority implicitly agrees to abide by the general principles which embody the higher law.
Consequently no one and no group has complete freedom to impose upon the rest of society any laws or any regulations that it wants. The very essence of constitutionalism rests upon the foundational belief that all power and authority will be exercised within the framework of the general principles and higher law that the constitution creates. People are chosen to assume power to legislate, govern, or adjudicate because it is believed they will do what is right. Not because it is believed that whatever they do is right. Legitimate authority in a constitutional system rests on the belief that power is not a physical fact but a decision on the part of the people to willingly obey.
Looking at the current situation in America today we have a president who in a 2001 interview expressed his inner most thoughts about the Constitution. He stated:
If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it I’d be o.k. But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf, and that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was, um, because the civil rights movement became so court focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.
That is as clear a statement of the way our Progressive leaders view America’s founding document, a charter of negative liberties.
As F. A Hayek told us in The Constitution of Liberty, “Only a demagogue can represent as ‘antidemocratic’ the limitations which long-term decisions and the general principles held by the people impose upon the power of temporary majorities.”
Think of what we had. Look at what we’ve got. Imagine where we’re going.
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