Posts tagged with: constitution

In this week’s Acton Commentary, I explore the differing mainstream cultural views of gun rights and abortion in the United States and Europe. The point of departure is last month’s Supreme Court decision in DC v. Heller (07-290) striking down the District’s handgun ban (SCOTUSblog round-up on the decision here).

In “Guns, Foreign Courts, and the Moral Consensus of the International Community,” I write that the “tendency to invoke foreign jurisprudence is becoming more troubling as it becomes clearer that the moral consensus that once united Western nations has almost entirely broken down.”

As Paul J. Cella commented on a number of related stories at home and abroad, “We are only a tendentious opinion from one of the Liberal Usurpers on the Court, or their creature Kennedy, under the spell of the New York-DC elite adulation — one tendentious opinion citing foreign law, or sweet mystery of life, or mystical evolving standards, away from the same tyranny that would send the homeowner who defends his wife against thugs to jail, while showering the thugs with sympathy.”

At the same time the Court was deciding Heller, it ruled “that imposing the death penalty for child rape violates the Eight Amendment’s ban on cruel and unusual punishment.” La Shawn Barber has details on the difficulties surrounding that decision, but in relation to the topic of my commentary I want to point out that the EU Constitution in its original form as circulated for ratification in 2004, under Article II-62, titled “Right to life,” held in part, “No one shall be condemned to the death penalty, or executed.” At the same time this article made no explicit or special mention of abortion.

For more insight into the disconnect between the UN/EU on the one side and the US on the other over gun rights, see Kenneth Anderson’s illuminating post, “International Gun Control Efforts?” (HT: The Volokh Conspiracy).

As Mike Huckabee was wont to say, we wouldn’t have the First Amendment without the Second. And if guns are outlawed, only outlaws will have knives (that explode?!).

Blog author: kschmiesing
Wednesday, July 16, 2008
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The prolific Thomas Woods has a new book out (with co-author Kevin Guzman): Who Killed the Constitution?

Woods is the author of the Templeton Enterprise-award-winning The Church and the Market, a volume in the Lexington Books series, Studies in Ethics and Economics, which is edited by Acton’s Sam Gregg.

I haven’t yet read Woods’ latest, but his work is always interesting and forcefully argued. And I’m inclined to agree with any effort to reassert some constitutional limits around our legal/political affairs.

Here’s Publishers’ Weekly:

Woods and Gutzman (two bestselling authors in the Politically Incorrect Guide series) appeal to both left and right in this constitutionalist jeremiad. Liberals will agree about the unconstitutionality of the draft, warrantless wiretapping and presidential signing statements. Conservatives will agree about the unconstitutionality of school busing, bans on school prayer and Roosevelt’s suspension of the gold standard. The common thread is the authors’ brief for a federal government strictly limited to the powers explicitly granted by the Constitution. The authors’ exegeses of the Constitution and court decisions, heavy on original intent arguments, are lucid and telling.

A sneak preview: Woods is the author of the forthcoming volume 13 in the Christian Social Thought Series, not yet available for purchase. He marshals Catholic social teaching, history, and economics in the cause of a powerful critique of distributism.

I did a brief interview yesterday with Greg Allen of The Right Balance and have a couple more scheduled for next week. It’s kept me thinking about some of the issues surrounding the debate about Christianity, democracy, and Iraq.

In the piece I wrote I pointed to some of the rather guarded opinions of representatives from the Christian tradition, namely John Calvin, Abraham Kuyper, and Dietrich Bonhoeffer, on the possibility of finding the “best” form of government.

But I’ve also been doing a lot of thinking about the biblical data, and it occurs to me that it was during Solomon’s reign that Israel enjoyed its greatest prosperity. We read, for instance, “During Solomon’s lifetime Judah and Israel, from Dan to Beersheba, lived in safety, each man under his own vine and fig tree.”

This led me to wonder a bit about how we should characterize the rule of the kings in Old Testament Israel. Clearly it’s a monarchy, but what sort?

We see the protection of private property, and a king who is subject to the rule of law and is specifically held accountable to Torah, when necessary by its public expositors the prophets. Calvin noted the intimate relationship between the prophets and Torah. Speaking about understanding the prophetic books, he writes, “the shortest way of treating this subject is to trace the Prophets to the Law, from which they derived their doctrine, like streams from a fountain; for they placed it before them as their rule, so that they may be justly held and declared to be its interpreters, who utter nothing but what is connected with the Law.”

While the prophets lacked the direct relationship with the executive power such that they could enforce Torah adherence, they certainly represented the divine perspective on Torah violation and its consequences (no doubt they were strict constructionists). In that sense they functioned as a sort of judicial check on the monarch’s power, similar to the way our Supreme Court is supposed to function.

If we view Torah as a sort of constitution, then in OT Israel we have an ancient kind of constitutional, and therefore limited, monarchy.

In his review of Sanford Levinson’s Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) in the Claremont Review of Books, Randy Barnett highlights some of the same features of the US political structure as particularly unique that Lord Acton emphasized. In conclusion Barnett writes of our Constitution:

It is counter-majoritarian by design. Precisely because the founders feared majoritarian fecklessness and abuse, they inserted the veto points to which Levinson objects. Most people today—whether left, right, or libertarian—still fear majoritarian rule. They believe they have more to fear from their political opponents gaining power than they have to gain from putting their friends in office. Indeed, many Americans revere the Constitution precisely because of its counter-majoritarianism—the checks and balances adopted by the founders.

Or in the words of Lord Acton, “Americans dreaded democracy and contrived their constitution against it.”

Here are some other relevant observations from Lord Acton on democracy, federalism, and the Constitution:

For it is a most striking thing that the views of pure democracy…were almost entirely unrepresented in [the American] convention.

Democracy generally monopolizes and concentrates power.

Federalism is the best curb on democracy. [It] assigns limited powers to the central government. Thereby all power is limited. It excludes absolute power of the majority.

Federalism: The only barrier to Democracy.

Federalism: It is coordination instead of subordination; association instead of hierarchical order; independent forces curbing each other; balance, therefore, liberty.

The great novelty of the American Constitution was that it imposed checks on the representatives of the people.

The true natural check on absolute democracy is the federal system, which limits the central government by the powers reserved, and the state governments by the powers they have ceded.

Barnett notes too the resistance to advocating the American form of federalist democracy for other nations.

“While most Americans prefer the safety of our counter-majoritarian Constitution, our constitutional ‘experts’ are happy to urge others to live the truly majoritarian ideal. Now Sandy Levinson is urging Americans as well to adopt a more majoritarian constitution. But maybe the time has come instead to let the rest of the world in on our little secret,” he writes.

This is the headline from Zenit on January 18. "Chaldean Archbishop Louis Sako, the archbishop of Kirkuk warns that a division of boundaries will lead to more conflict, with Christians caught in the middle."

“He says ‘a divided Iraq will not be a peaceful Iraq.’ …Archbishop Sako fears that possible plans for a Christian safe haven on the Nineveh plain will not succeed. He said: ‘They would have their own territory, but to be viable, the idea of a protected zone, a safe haven, which is viewed sympathetically by the Kurds and even the Americans, needs an end to the violence and remains in any event, a dangerous plan. The Nineveh plain is largely surrounded by Arabs, and Christians would serve as a useful and undefended buffer zone between Arabs and Kurds.'”

In other words, Christians would be caught in the cross-fire between Arabs and Kurds, unless something is done to curb the violence.

"According to the archbishop the best solution is religious freedom:" ‘In my opinion it would be preferable to work at the constitutional level and each area to guarantee religious freedom and equal rights for believers of all faiths throughout the land, including Christians, who can be found everywhere.’
Note: San Diego County, where I live, has one of the largest concentrations of Iraqi Catholics outside of Iraq. They are known as Chaldean Catholics, and they use Aramaic as their liturgical language. That is the language Jesus Himself used. It would be a shame for Iraqi Christians to be purged from their country.

Cross-posted at my personal blog.

This is an article worth reading by Steven Waldman in the Washington Monthly, “The Framers and the Faithful: How modern evangelicals are ignoring their own history.” The article examines the attitudes of many 18th century evangelicals toward government, and specifically with respect to a number of the founding fathers, including Jefferson, Madison, and Patrick Henry.

While the provacative subtitle may be true, it shouldn’t really be all that surprising. After all, Waldman does a good job throughout noting that “each side of our modern culture wars has attempted to appropriate the Founding Fathers for their own purposes,” and that convenient facts are omitted by each group. The article does a good job getting at some of the complexities and diversity of voices in the 1700s, and shows that there isn’t just a single univocal view of the proper relation between church and state. Check it out.

Maximilian Pakaluk, associate editor at NRO, examines a recent panel discussion given by the New York Historical Society, which included Supreme Court Justice Stephen Breyer, Akhil Reed Amar, Southmayd Professor of Law and Political Science at Yale University, and Benno C. Schmidt Jr., chairman of the Edison Schools and former dean of Columbia Law School. The discussion was entitled “We the People: Active Liberty and the American Constitution.”

Pakaluk observes, “The three speakers, but especially Schmidt and Breyer, agreed that the Constitution is terribly hard to figure out. From the way they spoke of it, you would think it had been written by a group of postmodern philosophers. Who knew that a document of less than 5,000 words, filled mostly with seemingly dry regulations and instructions, could be so perplexing?”

He continues, “Breyer had a metaphor to describe what goes into interpreting the Constitution: It’s a matter of ‘patrolling the boundaries’ of ‘democratic space.’ This sounded like a complicated affair, but the judge graciously shared his secrets. There are, according to Breyer, six ‘tools’ to be used in understanding the Constitution: text, history, tradition, precedent, purpose, and consequences.”

Of those six tools, “Breyer finds it ‘more enlightening’ to dwell mostly on the last two. His explanation of this approach was somewhat unsettling: It involved looking at the ‘values’ expressed in the Constitution, and then figuring out what their consequences are for today.”

When Dutch theologian Herman Witsius (1636-1708) wrote his The Economy of the Covenants Between God and Man in 1693, he described some of his own principles of textual interpretation. These were in part based on preceding examples of the applcation and understanding of government documents from classical sources.

In the very first article of his text, Witsius writes,

Whoever attempts to discourse on the subject and design of the Divine Covenants, by which eternal salvation is adjudged to man, on certain conditions equally worthy of God and the rational creature, ought, above all things, to have a sacred and inviolable regard to the heavenly oracles, and neither through prejudice nor passion, intermix any thing which he is not firmly persuaded is contained in the records which hold forth these covenants to the world. For, if Zaleucus made it a condition to be observed by the contentious interpreters of his laws, that “each party should explain the meaning of the lawgiver, in the assembly of the thousand, with halters about their necks: and that what party soever should appear to wrest the sense of the law, should, in the presence of the thousand, end their lives by the halter they wore:” as Polybius, a very grave author, relates in his history, Book xii. c. 7. and if the Jews and Samaritans in Egypt, each disputing about their temple, were admitted to plead before the king and his courtiers on this condition only, that “the advocates of either party, foiled in the dispute, should be punished with death,” according to Josephus, in his Antiquities, Book xiii. c. 6. certainly he must be in greater peril, and liable to sorer destruction, who shall dare to pervert, by rashly wresting the sacred mysteries of the Divine Covenants…

We can see that Witsius argues here that if there were such consequences and restrictions on the interpretations of secular laws, how much more there should be in the interpretation of the sacred texts of Scripture. We can also see that the dominant image for legal interpretation is that of “halters about their necks.” This classical image seems to be rather radically oppposed to Justice Breyer’s (post-modern?) notion of “patrolling the boundaries…of democratic space.”

Blog author: jballor
Wednesday, March 1, 2006
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“The First Amendment does not cover burping.” (from episode 2F22)


One of my favorite websites to check out on occasion is Professor Plum’s EducatioNation, and the first quote on the homepage is this from Thomas Jefferson: “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” [Thomas Jefferson to Charles Yancey, 1816]

To underscore the relevancy of Jefferson’s point, a recently released study by the new McCormick Tribune Freedom Museum “found that 22 percent of Americans could name all five Simpson family members, compared with just one in 1,000 people who could name all five First Amendment freedoms.”

In addition, “Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment (freedom of speech, religion, press, assembly and petition for redress of grievances.) But more than half can name at least two members of the cartoon family, according to a survey.”

According to the AP, “About one in five people thought the right to own a pet was protected, and 38 percent said they believed the right against self-incrimination contained in the Fifth Amendment was a First Amendment right, the survey found.”

More available at the Freedom Museum and the First Amendment Center.