Interpreting the Constitution: keep your eyes on its purpose, structure and words

From one of the most influential justices in the history of the Supreme Court:

In construing the constitution of the United States, we are, in the first instance, to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted, which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument. Where the words are unambiguous, but the provision may cover more or less ground according to the intention, which is yet subject to conjecture; or where it may include in its general terms more or less, than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy; and the argument from inconvenience will probably have different influences upon different minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the constitution, the antecedent situation of the country, and its institutions, the existence and operations of the state governments, the powers and operations of the confederation, in short all the circumstances, which had a tendency to produce, or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions

- Joseph Story (1799-1845), Commentaries on the Constitution, Chapter V,  § 405. II (1833).

Lex iniusta non est lex: On the Attacks on Glenn Beck and David Barton

Here and here, for a brief conversation they had in a car [fer crissakes] and put on Facebook.

We're speaking of talk show host/media mogul Glenn Beck, of course, and Republican activist/amateur [much-criticized, often fairly] history writer David Barton.  Now, Barton usually has something substantive in mind, although what comes out is often a jumble. However, his point here could be whipped into shape.

Lex iniusta non est lex.

Barton refers to "4 types of law," which is Aquinas. [Blackstone had 6, but they're similar.]

Aquinas recognizes four main kinds of law: the eternal, the natural, the human, and the divine. The last three all depend on the first, but in different ways. Were we to arrange them in a hierarchy, eternal would be at the top, then natural, then human. Divine law is not in conflict with natural law, but it reaches human beings by a different route, revelation.

Elsewhere, a correspondent cites the "supremacy clause" of the US Constitution:

Article VI: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

But that's circular. The Constitution's supremacy clause does not grant to the central government powers it's not specifically given. It is not the supreme ruler of the land, only the highest legislature.

The Constitution was conceived as giving only certain enumerated powers to the central government. The supremacy clause, the "law of the land," applies only to what the central government is constitutionally empowered to do.

Of course, today the federal government claims absolute power over every facet of our lives, but this does not mean it's a legitimate power, nor are we bound by any moral law to bow to it against our consciences--a moral fact implicitly in the First Amendment's free exercise clause.

"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."--Blackstone

“A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.”---Martin Luther King

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."--Jefferson, et al.

Barton [and Kim Davis] will lose before the power of the state, which has the biggest guns. But his argument is both timeless and tenable. It's disappointing that their critics are so blinded by their animus against Barton and Beck that they have forgotten the Founding principles. We have the natural right to resist tyranny in all its forms, even "legal" tyranny.

Lex iniusta non est lex.

The king decrees; he babbles not

Responding to my earlier post, Tom worries that inviting the legislature or executive branches to challenge court decisions is stepping out on the radical's slope:

[C]onservatives prefer not to destroy the social order to get their way. Gay marriage is now a fact, if only because reversing Obergefell would result in attempting to nullify 1000s of gay unions. So too, it's impossible to strip citizenship from 150 years worth of "birthright citizens," nor is it prudent to have the issue see-saw forever depending on which party controls the legislative process.

The conservative, who loves his country, hates and fears instability and anarchy more than bad laws. The leftist, of course, would rather cut the baby [or the country] in half, like in the old Bible story.

True, but it is no less radical to topple the coordination of the three branches to install the Court above them all. The conservative gives each branch an independent duty to interpret the Constitution, but incomplete power to carry it into effect. Which is why it is a superficial humility -- and dangerous -- when the executive and legislature excessively "defer" to the Court. In belittling their duty to interpret the Constitution they boast of their Washingtonian virtue in demurring to power. Do not believe it! Their effect is to unite their powers and so to enlarge the federal government. Their legacy is a Congress who scoffs at the suggestion of limits to its power; regards knowing those limits as above its paygrade; yet dares the Court to challenge it. This pits power against reason where reason wants a dialogue. And it deprives the Constitution of a point: for what point is there in electing leaders to interpret it when they defer totally to the unelected? And what point is there is amending the Constitution when Court decisions are deemed just as final and unchallengeable as anything in that fusty old parchment?

And if prudence be your touchstone, run -- run far, far away from a doctrine that lets the Court settle the greatest policy decisions for 320 million people for all time. Letting the Court settle abortion "rights" and put it out of touch of the people's representatives is what gives us most and most ghastly abortions in the developed world.

Prudence favors legislating citizenship for those already born here and appropriate new rules going forward. If the Court decides it has already settled the issue, let it say so. If its reasoning is sound, the legislature and executive can follow it. If not, it can carry on the dialogue. Why else does the Court fill pages giving purported reasons for its decisions? The king decrees; he babbles not. By honoring its tradition of giving reasons, the Court, even if unwittingly, participates still in a conversation among equals, its coordinate institutions who, alas, have fallen asleep or mute. Awake, and speak!

Perhaps those more sporting would propose to bulwark the conservative cause by swelling the Court's power and praying it votes conservative. If we elect a conservative Republican president who bats better than average on appointments -- no Kennedys, no Souters, no O'Connors -- it'll indeed be the jackpot: upwards of four appointments! Seven conservative justices! Ready the cert petitions of war! Oh, but what are the chances, really, of a genuine rock-ribbed-conservative bench? Breyer'll probably hold on till the next president, and at least one of the appointments will be a lemon. And conservatives just don't wage lawfare like the radicals do. Best we'll do is hold the line a while.

And if the presidency is lost? Fin. And besides, how conservative is it, really, to play the winner-take-all game on all our righlts-talk issues -- and let's face it, every issue boils down to some "right" or other -- by leaving it up to the Court to settle for all time? There is no reason -- certainly none in the Constitution -- that we should live under the absolute rule of the Court about whose decisions our elected branches have nothing to say.

Christianity, social activism and the civil rights movement

John Fea explains the links between those three topics:  The "Christian America" of Martin Luther King, Jr.  As Fea explains:

King's fight for a Christian America was not over amending the Constitution to make it more Christian or promoting crusades to insert "under God" in the Pledge of Allegiance (June 14, 1954). It was instead a battle against injustice and an attempt to forge a national community defined by Christian ideals of equality and respect for human dignity. Most historians now agree that the Civil Rights movement was driven by the Christian faith of its proponents. As David Chappell argued in his landmark book, Stone of Hope: Prophetic Religion and the Death of Jim Crow, the story of the Civil Rights movement is less about the triumph of progressive and liberal ideals and more about the revival of an Old Testament prophetic tradition that led African-Americans to hold their nation accountable for the decidedly unchristian behavior it showed many of its citizens.

I have read Stone of Hope & it is an insightful interpretation of the civil rights movement in the 1950s & 1960s.  Of course, by the late 60s, after the assassinations of both Malcom X & MLK, the civil rights movement largely took a turn away from its religious roots and towards "new left" secularism, a turn that left much of the movement without a spiritual core.  That in turn created one of the central tragedies of the civil rights movement -- just when its greatest victories were at hand, many of its leaders & activists abandoned a key component of what had been the movement's identity, the integration of faith & public policy when it came to questions of human rights & dignity.

In the increasingly secular environment in the United States it can never be said enough that the Rev. Dr. Martin Luther King, Jr.'s vision was a profoundly religious one -- and not just religious but Christian. His activism was grounded not in ideology but in faith, not in a secularism devoid of moral intuition but in a Christianity that inspired moral imagination.  King dreamed of world where the dignity of each person was respected because he believed in a God of love who had suffered, died & rose again so that each human being might have life, and have it more abundantly.  For those of us who are people of faith, we should never forget or be silent about that vision.

"We have been, and propose to be, more and more American"

He was nicknamed "Silent Cal," but when he spoke it was usually with wise words:

We stand at the opening of the one hundred and fiftieth year since our national consciousness first asserted itself by unmistakable action with an array of force. The old sentiment of detached and dependent colonies disappeared in the new sentiment of a united and independent Nation. Men began to discard the narrow confines of a local charter for the broader opportunities of a national constitution. Under the eternal urge of freedom we became an independent Nation...

Throughout all these experiences we have enlarged our freedom, we have strengthened our independence. We have been, and propose to be, more and more American. We believe that we can best serve our own country and most successfully discharge our obligations to humanity by continuing to be openly and candidly, intensely and scrupulously, American. If we have any heritage, it has been that. If we have any destiny, we have found it in that direction. 

But if we wish to continue to be distinctively American, we must continue to make that term comprehensive enough to embrace the legitimate desires of a civilized and enlightened people determined in all their relations to pursue a conscientious and religious life. We can not permit ourselves to be narrowed and dwarfed by slogans and phrases. It is not the adjective, but the substantive, which is of real importance. It is not the name of the action, but the result of the action, which is the chief concern. It will be well not to be too much disturbed by the thought of either isolation or entanglement of pacifists and militarists. The physical configuration of the earth has separated us from all of the Old World, but the common brotherhood of man, the highest law of all our being, has united us by inseparable bonds with all humanity. Our country represents nothing but peaceful intentions toward all the earth, but it ought not to fail to maintain such a military force as comports with the dignity and security of a great people. It ought to be a balanced force, intensely modern, capable of defense by sea and land, beneath the surface and in the air. But it should be so conducted that all the world may see in it, not a menace, but an instrument of security and peace.

 - President Calvin Coolidge (1872-1933), First Inaugural Address (1923).

The only enduring freedom is embodied freedom

"The only freedom which can last is a freedom embodied somewhere, rooted in a history, located in space, sanctioned by a genealogy, and blessed by a religious establishment.  The only equality which abstract rights, insisted upon outside the context of politics, are likely to provide is the equality of universal slavery. It is a lesson which Western man is only now beginning to learn. And at great cost."

- M.E. Bradford, A Better Guide Than Reason:  Federalists & Anti-Federalists (Transaction Publishers:  1994), pg. xviii.

Three qualities of Ronald Reagan that shaped his political success

Former Reagan domestic policy assistant T. Kenneth Cribb writes about three characteristics of Ronald Reagan that helped guide his work as a politician and leader:  Ronald Reagan and the Moral Imagination.  As Cribb begins his discussion of Reagan's traits:

On the occasion of the centennial of his birth, I am going to make three assertions about Ronald Reagan that will be considered novel in some quarters. I’m going to argue:

• Ronald Reagan was an intellectual in the only important sense of that word.
• Ronald Reagan was a man of orthodox Christian faith.
• The victory over Soviet Communism was made possible by Ronald Reagan’s power of moral imagination.

Read the article for a fascinating glimpse into the personality of the man who was possibly the most successful conservative president of the last century.   I found Cribbs' discussion of Reagan's religious faith to be the most interesting -- his guiding belief in divine Providence is certainly echoed by other American presidents, including our two greatest, George Washington and Abraham Lincoln.  And Reagan had a firm grasp of the necessity of religious faith in preserving a culture of freedom here in the United States.  As Cribbs quotes Reagan saying:

Without God, there is no virtue, because there’s no prompting of the conscience. Without God, we’re mired in the material, that flat world that tells us only what the senses perceive. Without God, there is a coarsening of the society. And without God, democracy will not and cannot long endure. If we ever forget that we’re one nation under God, then we will be a nation gone under.

Hillary, the Democrats and the Cannibal Vote

In reference to Donald Trump's evangelical vote—which doesn't really exist—a left-wing $25/hour college adjunct "professor" wrote at me [such types do not write "to," only "at"]:

I find it very interesting how a group of people that purport to have high moral values will be able to willingly vote for a man who does not share those moral values. 

How tiresome and judgmental. Better to have no values atall, then, like the Democrats defending organizations that tear out babies' faces and sell the bodies for spare parts? As they said of Franklin Roosevelt, if he "became convinced tomorrow that coming out for cannibalism would get him the votes he so sorely needs, he would begin fattening up a missionary in the White House backyard come Wednesday."

Surely, Planned Parenthood's cannibalism is little different from the actual thing. And there's Hillary Clinton, calling the GOP "terrorists" for wanting to defund these monsters.

At long last, ma'am, have you left no sense of decency?

Two Constitutional Monologues Do Not Make a Dialogue

At some level, maybe Obama's onto something with all his executive orders and unilateral executive action. He claims -- disingenuously, I think -- he can't get a dialogue with Congress, so he just monologues into law. Despite the wail of constitutional conservatives, myself included, clearly the American people don't put much premium on it. Reminded of the three-branch model, the voting public clearly accepts some coloring outside the lines.

So why, then, do conservatives still expect to get return-on-investment by insisting the only way to challenge a Supreme Court decision is to amend the Constitution? This comes up in the debate over birthright citizenship. Frankly, I don't care much about the policy and would rather have this conversation over the Court's befuddling and tragic abortion precedent, but one must take civics lessons where one finds them. The precedent on the birthright citizenship question, based in the Fourteenth Amendment, is weak either way. (James Ho and John Eastman, both former Justice Thomas clerks, each vigorously represent the two opposing views.) Seems like a clear case where Congress could step in with its own independent take on the language in question: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Yet most conservatives -- even many who desperately oppose illegal immigration and do not want the Fourteenth Amendment to support birthright citizenship -- assume this constitutional question must be settled by Court monologue. They take it as read that you have to send up a test case to the Supreme Court, and when it upholds birthright citizenship -- as it certainly will -- you're stuck with amending the Constitution. And on cue, they will cite hoary old Marbury to you, that "It is emphatically the province and duty of the Judicial Department to say what the law is." Then they will give you that self-satisfied look, as if to say, "I think I've made my point." For these "legends of our own time," as Hadley Arkes describes them, "Marbury v. Madison has come to mark the power of the Court to strike down an act of Congress as unconstitutional. More than that, it has been taken to establish this cardinal point: that the Supreme Court must stand as the sole authoritative interpreter of the Constitution."

"But," Arkes demurs, "that extravagant proposition is nowhere to be found in the text of Marshall's opinion in Marbury v. Madison." Arkes is right, as I will let him explain in a moment. But as a common-sense proposition, consider what it would mean if the Marbury hawks were right. The Constitution, they explain, makes the Court the sole expositor of the constitution, and we know that because the Court told us so, and it is the sole expositor of the Constitution. It is textbook circular reasoning.

Justice Marshall, to the contrary, argued it straight. "Marshall was able to show then why the law of the Constitution must take precedence, in any case, over a statute or an act of ordinary law. If judges confronted, in any case, a tension between the law of the Constitution and the law of a statute, Marshall showed that the Judges would be obliged to accord a logical primacy to the commands of the Constitution....Marshall had claimed nothing for the judges that could not have been claimed for any other officers of the government."

Over a century later in 1927, writing for the majority in Adkins v. Children's Hospital, Justice Sutherland confirmed the point:

"From the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation, which, transcending the Constitution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the text and measure of the law."

Thus, the "duty...to say what the law is" is not the same as the authority to dictate what the Constitution says. It simply makes the point that one branch cannot dictate hermeneutics to another. The example Arkes likes to use is that the Court may -- must -- independently access natural reasoning to discern that a new law that overcomes an earlier statute yet must also accede to an earlier constitution. To take an even simpler example, consider that the word "unconstitutional" never appears in the Constitution, yet the Court routinely and (sometimes) rightly strikes down acts of the people's legislatures on the basis of this invisible concept. These are concepts that transcend the Constitution. Yet they are something quite different from deciphering what "subject to the jurisdiction thereof" means.

O'Connor's dissent in City of Boerne v. Flores completes the circle, inviting Congress to join the Court in dialogue over the Constitution's meaning:

"This recognition does not, of course, in any way diminish Congress’ obligation to draw its own conclusions regarding the Constitution’s meaning. Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates."

Of course, this invitation to collaborate in interpretation is not an invitation for Congress to exceed its powers, whether under Art. I sec. 8 or Am. V sec. 5, as O'Connor goes on to explain: "But when it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Court’s exposition of the Constitution and with the limits placed on its legislative authority by provisions such as the Fourteenth Amendment."

The point is, we're on dangerous ground if we've set up the Court as the divine last word on all matters of interpreting the Constitution. It puts too many issues too far away from regular lawmaking, and puts our policies out of step with other civilized countries (for example, on birthright citizenship and abortion). And it is particularly dangerous when lawyers and jurists have demonstrated a willingness to find a fully formed positive law in the Constitution, just waiting for the right plaintiff to midwife it into existence. That seems not very conservative to me, and even less sensible. 

Abraham Lincoln was not the father of big government

That's the point brought out in in this piece over from the Heritage Foundation:  Was Lincoln the Father of Big Government?   As author Julia Shaw notes, it was not Lincoln who developed the idea of big government, but later progressive leaders like John Dewey, Teddy Roosevelt and Woodrow Wilson who crafted the modern idea of big government.  While the government did expand under the Lincoln administration, that was to deal with the emergency of the Civil War.  Lincoln had no desire or intention to craft a permanent expansion of the federal government once that crisis was over. 

Lincoln biographer Alan Guelzo comes to much the same conclusion as Shaw in this piece over at National Review Online here.  As Guelzo notes, federal spending and the reach of the federal government grew under the Lincoln administration, but only because of the pressures of the Civil War and inflation that the war inflicted on the economy.  Once the war was over, spending ratcheted down dramatically as the North returned to normalcy and the South was Reconstructed.  As Guelzo puts it:

Yes, the federal government grew enormously under Abraham Lincoln. But that was only in comparison to the bite-sized federal government that had prevailed in the 1850s, and it occurred only under the unprecedented circumstances of civil war. The real measure of Lincoln’s “big government” is how quickly it shrank back to more recognizable proportions once the wartime emergency was over. Rahm Emanuel might say that Lincoln wasted a good crisis. It would be better to say that Lincoln managed a crisis without making it worse.

Guelzo's post is a welcome reminder that our second-greatest president believed in natural law, a free economy, and a limited role for the federal government in fostering and nurturing that economy.  He was a conservative in the tradition of classical liberalism  -- which means to say that he was a Whig.  As was another notable conservative on the other side of the Atlantic, Edmund Burke. While classical liberalism is not without its flaws, it fits within the broad tent of modern conservatism.  Certainly Lincoln's emphasis on natural justice, on the idea of equality under the law while recognizing that human beings have inevitable inequalities in terms of ability, on the notion that the role of government is to foster human liberty rather than to dictate outcomes, fit into what anyone today would recognize as a conservative viewpoint.  When taken together Lincoln's views paint a picture of a prudential and conservative approach to political order.

Interestingly enough, the points made by Shaw and Guelzo are echoed by one of the current writers most hostile to Lincoln, Thomas E. Woods.  Woods describes the point at which the executive branch of our federal government became so powerful in his book 33 Questions About American History You're Not Supposed to Ask (Crown Forum:  2007), pg. 136:

Was there a turning point that brought us down this road?  Abraham Lincoln certainly exercised extraordinary executive powers during the Civil War, as his supporters and critics alike acknowledge, but the very fact that the sixteenth president acted during wartime limits his usefulness as a source of precedents for peacetime chief executives (although to this day the "even Lincoln did thus-and-so: argument is still to be heard during episodes of government mischief).

If we had to pinpoint a single individual as being responsible for the modern presidency, it would be a man who in word and deed, in theory and practice, brought unprecedented vigor and visibility to the presidential office.  It would be a figure loved and admired to this day by mainstream Left and Right alike. It would be Theodore Roosevelt.

Big government is the result not of Lincoln's presidency or his policies, it is the product of the progressive era in American politics, the late 19th and early 20th century period that nationally coincides with the administrations of TR, Taft and Wilson.  It is at their doorstep that credit for a dominating executive branch and an expansive federal government needs to be deposited.  Leave poor old Abe Lincoln alone.  He simply wanted to save the Union for constitutional government.  Big government was neither his intent nor his effect.

Lincoln was a prudential conservative, committed to the principles of natural law and a limited government that was active and robust within its sphere of legitimate authority.  His defense of the Union, his devotion to the Constitution, and his desire for careful and cautious reform (evident in his approach to the issue of slavery) denotes him as a conservative, not a radical or proto-modern liberal.  In both good and ill, Russell Kirk was right when he adjudged Lincoln a conservative statesman. While there is much that is imperfect in Lincoln's political thought, there is much more that is right and in accord with a conservative approach to government.  Efforts to cast him from the ranks of conservative thinkers & leaders are mistaken.

Related items:

• Here are some more popular but incorrect ideas about Lincoln, debunked over at the Washington Post by Lincoln scholar Harold Holzer:  Five myths about Abraham Lincoln.

• Here's an earlier post from this blog on Russell Kirk's concept of conservatism and Abraham Lincoln. 

• University of St. Thomas law professor Michael Stokes Paulsen has a lecture posted on Vimeo and hosted by First Things on Lincoln's approach to the Constitution. Worth a watch. 

The conservative vision of John Dos Passos

I first became aware of John Dos Passos thanks to an introductory course in American literature I took at my local community college in 1989 or so.  The University Bookman has published this overview of the thought of Dos Passos by the late Richard F. Hill: Dos Passos: A Reassessment.

Hill points out the considerable evolution that Dos Passos underwent over the course of his productive life, moving from communism to conservatism, eventually becoming enamored with the ideas and image of Thomas Jefferson.

The Jeffersonian mythos provides the key approach to politics and human flourishing that motivated Dos Passos in his shift from the totalitarian Left to a more traditionalist vision of community and order. As Hill explains:

It is the dream of the little man, the small farmer and worker who wants to be free from centralization and tyranny, whether it come from business or labor, the right or the left. It is represented by what are surely his most sympathetic characters throughout his fiction, early and late. They are the real keys to Dos Passos’ sympathies and the best evidence for his consistency.

The whole piece by Hill is much worth reading, and provides significant insight into the work of one of the most overlooked American writers of the 20th century.

The bonds of unity in the young American republic

For this you have every inducement of sympathy and interest. Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels, and joint efforts of common dangers, sufferings, and successes.  

- President George Washington (1732-1799), Farewell Address (1796).