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.
Not really debatable. Article V enumerates that an amendment regarding the "Importation of such Persons" [I-9] can be made after 1808.
The federal government already controlled some items, and now was given the power to see to it that slavery did not exist.
Our Constitution & its Amendments 'already controlled' both fed & state powers regarding the freedoms of ~all~ persons; -- including, - "such Persons".
Prohibitionists will disagree, of course. -- To them, fed & state powers over persons are negotiable.
President Lincoln said, "Let us have faith that right makes might; and in that faith let us do our duty as we understand it."
In context, Lincoln was not advocating using the might of gov't power to overrule individual rights. -- He advocated we do our duty to correct such infringements.
Thanks kid. -- Had any 'run-ins' with Sam Hill lately?
It's on the new threads list.
Gotta link? I can't find it.
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.
Thanks.
Sorry, the author brings a few wagonloads of straw and a truckload of used clothing bins to construct so many straw men that the crows are weary unto death.
On the forum or new replies page look on the top right, third line down. It has THREADS and MESSAGES. Click on THREADS for all of the new threads. Views and replies are just under each title, next to the time.
Straw men? How so?
The hordes of imaginary affinity groups.
Thanks.. -- That same 'views' function is once again showing up on the 'my comments' page as well.
-- Must be gremlins.
Um, ok.. -- But maybe you could be more specific about "imaginary affinity groups"?
There are a ~lot~ of prohibitionists around, and they organize in pretty 'unimaginary' groups, -- to my knowledge.
And crows are known to be the wisest of birds, even more than owls.
Um, ok.. -- But maybe you could be more specific about "imaginary affinity groups"?
There are a ~lot~ of prohibitionists around, and they organize in pretty 'unimaginary' groups, -- to my knowledge.
Make a list of great and famous people, a short list but more than three.
Hmm, - so you've given up on "-- hoards of imaginary affinity groups --"? Now its individuals who are 'unfairly characterized'?
Now you can say whatever you want about some concoctionary motif of your own choice and attribute it some shared characteristic of those people.
How bout if these individuals belong to a group like the "Brady Campaign to Prevent Gun Violence"? Is it a concoction to characterize them as prohibitionists?
Almost whatever you say will appear valid, for it is the nature of the great and famous to be multifaceted and have deep opinions. You've just created a high-falutin' table of The Great all of whom hold exactly the intellectual positions you want them to have. And all just straw dolls that drive away every crow.
Weird, in that you've constructed a 'straw man' about Adler's position, then shot that 'doll' down.
And crows are known to be the wisest of birds, even more than owls.
Yep. I'm sure that your 'crow thing' has some deep significance to you, -- but give the rest of us a break.
The hostility of an owl and a crow is well known down the ages. What is, however, not known is the traditional animosity of an owl for a crow. Once, when the Buddha was dwelling in the Jetavana in Savatthi he was reported the killings of several crows by an owl. In this context, the Buddha narrated the origin of the animosity between the two species.No crow nor owl would ever pick a goose to be king. Geese are holiday dinner.During the first cycle of the creation of the world men assembled and chose a handsome, gracious, commanding and a perfect man as the king for themselves. The animals, too, gathered and chose lion as their king. The fishes too chose a large fish named Ananda as their king. Then all the birds, too, gathered to choose their king.
In course of their search, they voted for the owl. Twice they proclaimed, “Here is the bird, who we like”. But when the same announcement was repeated for the third time, the crow made a strong protest against the proclamation. He cried, “Why should an angry-looking owl be made a king, when there are younger and wiser birds around. The owl even without looking angrily pops others like the sesamum seeds when thrown on a hot pot. So, what would happen to us when he be really angry?” Cawing these words the crow flew away and the owl chased him in anger. Since then, the two are at the loggers head.
The birds then crowned a goose as their king, [Redacted idiocy follows]
[ The Illustrated Jataka & Other Stories of the Buddha by C.B. Varma ]
We eat your god.
whatever bump
I would have titled the article "Crows and Owls Fight, Geese Win".
Good article ... too bad the Constitution is in tatters and won't come back wihtout a civil war.
Good article ... too bad the Constitution is in tatters and won't come back without a civil war.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
That subject was being just being discussed on this thread:
The Once and Future Republic of Vermont
Address:http://www.freerepublic.com/focus/f-news/1810099/posts
My comment at # 62:
-- States have the power to in effect 'opt out' of current federal usurpation's of power.
All any State has to do is refuse to cooperate with feds on constitutional grounds, -- and tie up the system in the federal courts with appeal after appeal.
Non-violent civil disobedience by an entire State gov't [backed by its people] could not be ignored, and could not be [politically speaking] put down by force.
-62-
The the final arbiter, of course.
Great post, tpaine. Guess I'll have to get my dictionary out. :)
"-- 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 positivists hold that might is right. --"
--- The issue has always been between those of us who live for the liberty to own & use property as we see fit;
--- and those who decree that they, - and 'society', - have the power to prohibit any property seen as 'unfit'.
The prohibitionists hold that gov't might is 'right'. -- The 2nd holds that an armed people are right.
Thanks for the bump Eastbound.. -- But why the dictionary?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.