Posted on 03/31/2007 10:39:03 AM PDT by tpaine
Six Amendments to the Constitution
A Commentary by Mortimer J. Adler, Ph.D.
"---- Three features in the Constitution have a bearing on its future -- they point to its alterability and give direction to ways in which it may be altered.
First, the Constitution explicitly announces itself as the fundamental law of the land, which makes any laws or acts contrary to it unconstitutional. This is the foundation of the Supreme Court's power of judicial review whereby what is unconstitutional can be declared null and void.
Second, Article Five provides for amendments to the Constitution. Hence, the Constitution is not engraved in stone; it has a malleable future.
Third, the Ninth Amendment declares that the rights enumerated in the first eight amendments do not deny or disparage other rights retained by the people.
What are these other rights?
They must be either the civil rights previously conferred on the citizens by the several states or the unalienable, natural, and human rights mentioned in the second paragraph of the Declaration of Independence. It is most likely that those who formulated and adopted the Ninth Amendment were conscious at the time of the unalienable (natural, human) rights mentioned in the Declaration.
If the first eight amendments do not deny these rights, then, together with the Ninth Amendment, their adoption tacitly acknowledges the existence of natural rights. This extends judicial review from nullifying laws that are unconstitutional to nullifying laws that are unjust because they transgress natural rights.
With this in mind, let us now consider the questions we must answer about the last two hundred years, and the significance of the answers we give to them.
We all know the basic historical facts. We know who were not enfranchised by our eighteenth-century Constitution: women, slaves, the proletariat (propertyless workers). We also know the succession of amendments that radically altered the eighteenth-century Constitution: the Thirteenth, Fourteenth, and Fifteenth Amendments in 1866-1870; the Nineteenth Amendment in 1919; and the Twenty-Fourth Amendment in 1964.
This succession of amendments requires us to answer only three questions: (1) Is this a history of progress? (2) Is it a history of regress? or (3) Is it neither progress nor regress? Let us consider the three answers to these questions. There are those who say it is progress from oligarchy to democracy, as measured by successive rectifications of the injustice in the eighteenth century, pre-Civil War Constitution. They give this answer by reference to principles of natural justice and to the existence of natural (unalienable, human) rights. This answer involves an implicit acknowledgment of natural justice and natural rights as the basis of the Constitution's rectification. However, that fact is not generally recognized, nor is what it entails understood.
There are those who say that the history of constitutional change represents regress from better to worse government. If they are not talking about efficiency, then a principle of justice appears to be involved. Unequals should be treated unequally: some given and some denied political liberty and political power. They appeal to the advantages of rule by an elite portion of the population, those who deserve to be the people. This represents Thomas Jefferson's ideal of a natural aristoi of virtue and talent; or, in John Adams' words, rule by those with the advantages of birth, property, and education.
Finally, there are those who give the third answer: the Constitution has neither progressed nor regressed, because there are no principles of natural justice and no natural rights by which the goodness of constitutions and all other man-made laws can be assessed.
The historical changes in the Constitution are not from worse to better or from better to worse, but only from what was more expedient in the eighteenth century to what became more expedient after the Civil War and in the twentieth century. These changes resulted in shifts of power -- changes in where the power resided. Each was equally good for its time -- relative to the circumstances then prevalent. Whereas justice and rights are always the same, expediency varies with the circumstances. If slavery is unjust, it is always unjust, but it may be expedient at one time and not at another.
The basic issue here -- between the first two answers (both of which appeal to principles of natural justice) and the third (which denies such principles) -- is the deepest, most long-standing issue in jurisprudence or the philosophy of law: the issue between naturalists, on the one hand, and positivists or legalists, on the other.
The naturalists include Socrates, Aristotle, St. Thomas Aquinas, John Locke (and on the Supreme Court, Justices Benjamin Cardozo, Louis Brandeis, William Brennan, Harry Blackmun). Among the positivists are Thrasymachus, Ulpian, Thomas Hobbes, Jeremy Bentham, John Austin (and Justices Oliver Wendell Holmes and Felix Frankfurter, as well as Judges Learned Hand and Robert Bork).
Let me spend a moment on the shape of the issue. The positivists hold that might is right.
Today, for example, the power lies with the majority in Congress. This determines what is right. Therefore, there can be no unjustly oppressed minorities. Man-made laws determine what is just and unjust at a given time and place: justice is variable and relative. There are no standards for appraising the justice and injustice of laws or constitutions. There are no mala per se; only mala prohibita.
The naturalists hold that constitutions give governments authority as well as authorized force (authorization by the consent of the governed); that principles of natural justice and natural rights determine which man-made laws or constitutional provisions are just and unjust. Unjust laws are laws in name only. They have only force behind them, no authority. Might does not make right. For naturalists, there are mala per se as well as mala prohibita.
With regard to the Supreme Court justices and federal judges named, it should be said that all may be equally eminent jurists when it comes to deciding cases at common law in appellate courts. They all may be highly competent when it comes to deciding cases that raise questions of the constitutionality of a particular law or executive act. But when it comes to deciding cases that go beyond questions of constitutionality to questions concerning natural rights, involving principles of natural justice, the nomination to the Supreme Court of self-confessed positivist jurists (such as Holmes, Frankfurter, Hand, and Bork) is totally inappropriate. The Senate rejected Judge Bork for the wrong reasons. It needed only to question him about his views concerning the Ninth Amendment.
I think that the three-sided issue must be resolved in favor of natural justice and natural rights. Here are my reasons for thinking so. How do positivists explain the succession of amendments that the naturalists regard as rectifications of injustice and as securing natural, human rights? How do they explain the amendments that the naturalists regard as steps of progress toward democratic justice? It seems that they must say that they came about through the operation of power politics. This means that those who stood to benefit by them had enough political clout to get these amendments adopted in order to improve their own condition.
But is this true of the black slaves after the Civil War or of the militant suffragettes and the disfranchised poor in the twentieth century? Remember that the outcries against slavery came from abolitionists long before the Civil War. Those outcries appealed to principles of natural justice against the injustice of legalized chattel slavery. Remember how persecuted and mistreated were the few women who marched for their right to vote in the second decade of the twentieth century. Later, what political clout had those who did not pay poll taxes?
If we dismiss the positivists' interpretation of how the amendments came about and if the positivists cannot come up with a better explanation of their adoption, an explanation of how these amendments became expedient, then our constitutional history is a story of progress toward democracy -- of step after step toward greater justice according to the principles of natural justice and natural rights.
The naturalists win the argument if unchanging justice, not merely changing expediency, is the standard by which the Constitution can be criticized and improved.
"-- The positivists hold that might is right. --"
--- The issue is between those of us who live for the liberty to own & use property as we see fit; --- and those who declare they have the power to prohibit any property they see as 'unfit'.
The prohibitionists hold that gov't might is 'right'. -- The 2nd holds that an armed people are right.
Constitutional bump.
Amazing lack of interest bump.
How many times has it been viewed?... Some of us do not have your zeal or edcuation on the Constitution in order to make comment on such an outstanding article. You and I have butted heads over court interpretation of the Constitution on various topics, but I bow to your knowledge of the Constitution in all cases even when we disagree. Don't look at the lack of posts as disinterest ... most of us regulars are familiar with your debating.
All are to busy fighting over which RINO running for POTUS will sell us down the river
BTW, great article.
Reminds me of what this place used to be like.
Nice find.
Thanks,
L
I never thought of Judge Bork as a legalist.
Good question, one I was about to ask meself.. -- The 'times viewed' feature is no longer there. Anybody know when & why it was pulled?
... Some of us do not have your zeal or education on the Constitution in order to make comment on such an outstanding article.
Thanks. No formal 'education' tho.
You and I have butted heads over court interpretation of the Constitution on various topics, but I bow to your knowledge of the Constitution in all cases even when we disagree. Don't look at the lack of posts as disinterest ... most of us regulars are familiar with your debating.
That's good to know. -- It's become hard to tell lately, as many of FR's prohibitionists & majority rule socialists refuse to even debate the issues they raise.
-- Regards..
Completly forgetting that all the infighting is what "will sell us down the river".
BTW, great article. Reminds me of what this place used to be like.
Thanks.
Thanks to my opponents, I find this stuff. -- Following them around FR is a real education in bizarre constitutional theories.
:-)
Well, he sure ain't a constitutionalist.
-- "Prohibitionist" classifies him just fine.
Technically there were a few slaves who weren't officially free until December 1865, because they were living in states not covered by the Emancipation Proclamation, but in practical terms I don't think very many of them were actually compelled to work without pay against their will during the interval between April and December of 1865.
"-- I think that the three-sided issue must be resolved in favor of natural justice and natural rights.
Here are my reasons for thinking so.
How do positivists explain the succession of amendments that the naturalists regard as rectifications of injustice and as securing natural, human rights?
How do they explain the amendments that the naturalists regard as steps of progress toward democratic justice? It seems that they must say that they came about through the operation of power politics.
This means that those who stood to benefit by them had enough political clout to get these amendments adopted in order to improve their own condition. But is this true of the black slaves after the Civil War or of the militant suffragettes and the disfranchised poor in the twentieth century? Remember that the outcries against slavery came from abolitionists long before the Civil War. Those outcries appealed to principles of natural justice against the injustice of legalized chattel slavery. --"
What black slaves after the Civil War? Slavery ended with the Civil War.
Context anyone? -- In context Adler is asking:
[Is this true? --] "- those who stood to benefit by them had enough political clout to get these amendments adopted in order to improve their own condition. But is this true of the black slaves after the Civil War or of the militant suffragettes and the disfranchised poor in the twentieth century? --"
I too think that the prohibitionists/positivists among us ~can not~ explain away the succession of amendments that we naturalists regard as rectifications of injustice and as securing natural, human rights.
--- They sure ~try~ to say the 14th does not 'incorporate' our right to own & carry arms; -- that's what prohibitionists/socialists do.. -- Because socialism is a political disease.
Repeal the 16th and 17th, as a start. Then actually enforce the 10th, and we'll be a long way back towards a decent limited government. (Which, by the way, necessarily entails fewer skirmishes into foreign lands, so the liberals should even have a bumper-sticker slogan that could get them on board with the idea.)
Then, for my own personal tastes, a term limit amendment (1 senate term, 2 presidential terms, and 5 in the House. A quarter century in the federal halls is more than enough for anyone.)
Sadly, it won't happen without bloodshed. It never does.
The abolitionists seem to have been motivated by altruistic reasons for the most part--by the realization that slavery was inherently evil and needed to be eliminated. But there were also whites who wanted slavery abolished because they felt that the institution worked against their own interests, by making it harder for white owners of small farms to succeed.
Slavery existed in some of the states in 1787, so it had to be left to the states by the Constitution or those states would have refused to ratify the Constitution. The abolition of slavery in 1865 was long overdue but whether the 13th amendment really represents an alteration in the relationship between the federal government and the states is debatable. The federal government already controlled some items, and now was given the power to see to it that slavery did not exist.
Hmmm, we repeal income tax & popular election of Senators. -- I like it...
Then actually enforce the 10th, and we'll be a long way back towards a decent limited government.
Actually, -- enforcing the 10th would make the 16th a null & void "amendment". -- No branch of gov't could have the power to enforce it without violating all of our individual rights.
(Which, by the way, necessarily entails fewer skirmishes into foreign lands, so the liberals should even have a bumper-sticker slogan that could get them on board with the idea.)
Yep. -- We can all agree that gov't should limit itself to enumerated powers on making war.
Then, for my own personal tastes, a term limit amendment (1 senate term, 2 presidential terms, and 5 in the House. A quarter century in the federal halls is more than enough for anyone.)
Good plan. -- I'd just simplify it by setting a two term limit in any of those jobs.
Sadly, it won't happen without bloodshed. It never does.
I'd bet money that you're right about that...
Abraham Lincoln said that right makes might. I think so too.
"How it used to be around here on FR" bump.
It's on the new threads list. Don't look, it's discouraging. The Constitutionalists are gone. Those that may remain are afraid to post because they'll just get mired in pointless arguments with the God Squad or the ones fer that thar team with the purdy red jerseys.
Good article, though.
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