Friday, July 17, 2020

The Jurisprudence of our Founding Fathers

Jurisprudence is the theory or philosophy of law. Our Founding Fathers laid the foundations of "constitutional" jurisprudence in the foudational principles upon which they framed the U.S. Constitution. The philosophy of law upon which our free republic was framed stands firm upon these six foundational principles, upon which the God given natural rights off all men could be preserved in perpetuity.

1. God is the author of free government. 
2. Natural rights are bestowed by God. 
3. Governments derive their powers from the consent of the governed. 
4. Government is instituted for the purpose of securing to the individuals their natural rights. 
5. The interests of the majority and the rights of the minority are protected when government acts within its legitimate charter
6. Free governments are maintained upon principles of righteousness.

Our founders theory of civil society was based on ages of learning and enlightenment and informed by the study of observable social science as recorded in the annuals of history. The principles they articulated were principles of immutable truths and the mechanisms of government designed upon these truths accounted for the limitations of the human character and condition, also constant in this state of existence.

Two hundred and twenty six years later we look at the state of our constitutional republic and wonder how it has become so corrupted. To the students in my Constitution class I have described our nation as a house. As with the construction of any sound dwelling it must first begin with a solid foundation, followed by a the proper support beams and framing for which all the components will rest. The foundation in this analogy are those foundational principles of truth that constitute the philosophy of law upon which our nation rests. No matter how sturdy the supports or framing, which represent the Constitution, it cannot long endure a crumbling foundation.

If this foundation represent a constitutional jurisprudence then it follows that what has weakened the foundation of our American republic is an application of a foreign jurisprudence, some theory and philosophy of law unrelated to these foundational principles. What foreign jurisprudence has been applied to have caused such extensive degrading of our foundations?

Progressivism and the New Science of Jurisprudence. Wait a minute, you say, weren't our Founding Fathers progressives, liberals in their time? Classically, yes, but the Progressivism which I will describe has it's roots in a philosophy that is the antagonistic opposite of American Constitutional Jurisprudence. The social philosophies of American progressives had its birth in Social Darwinism, but continued to "evolve" and has taken many titles from pragmatic liberalism to democratic socialism.

Perhaps the best way to examine how progressive philosophy is the full opposite of constitutional conservative philosophies would be to view them side by side.

Constitutional Conservatism
God the Author of Free Government: Liberty and natural rights have a divine origin, as such God given Liberty and natural rights are maintained upon principles of truth given through the “Supreme Governor of the World.” Thus, it follows, that for a free republic to function properly and endure the people and their leaders must be moral. Natural Rights, both alienable and unalienable are bestowed on all men and women by God and cannot in justice be forcibly taken from any person.
There are no fixed or eternal principles that govern, or ought to govern, the politics of a decent regime. It rejects "the sacred ark of permanency" that had governed our understanding of human beings. The absence of fixity, morals, politics, and religion allow for the organic growth necessary for radical renegotiation and transformation that experimental logic can be brought to bear on an array of human problems heretofore considered unsolvable, or at least permanent.
The only form of just and legitimate government is one which receives it’s power from the consent of the governed, and maintains those liberties that will secure such rights in perpetuity. It is necessary that free republican government is limited by those forms of administration able to secure the natural rights of all men from the usurpation of an overarching central authority.
The state and its component parts are organic, each involved in a struggle for never-ending growth. Contrary to the Platonic ideal of stasis, and contrary as well to the Aristotelian notion of natural movement toward particular ends, the Progressive organic view of politics suggests that movement itself is the key to survival and the political "good."

The Interests of the Majority and the Rights of the Minority are Protected when Government Acts within its Legitimate Charter: The mechanisms of government must be divided with certain enumerated powers outside which it cannot act.
Democratic openness and experimentalism, especially in the realm of expression, are necessary to ensure vigorous growth; they are the fertilizer of the organic state. There are no limits to our experimenting with our institutions and laws.Society as an organism is constantly in the throes of change and must grow and evolve or die.
Rule of Law: A government of law and not of men is the substance of equality for it provides the assurance that all our equal under predictable and even law, restrained from the arbitrary use of power that favors one over another and destructive to the liberty of all men.
The state and its component parts exist only in history, relevant and effective only in the context of its time. Ideas are contingent upon their time period, relative to their society. Human life therefore is nothing in particular, beyond a continual unfolding and advancement, and liberalism is dedicated to its liberation through social policy.
Representative Government consists of leadership chosen from the best of the populous -- sworn to uphold Constitutional law and represent the concerns of their constituencies -- and those fairly elected should be sent back to private life in frequent elections controlled by a vigilant and well informed citizenry.
Some individuals stand outside of this process and must, like captains of a great ship, periodically adjust the position of this ship in the river of history to ensure that it continues to move forward rather than run aground and stagnate. Politics demands an elite class, possessed of intelligence as a method, or reason directed to instrumental matters rather than fixed truth. This elite class springs into action to clear obstacles in the path of historical progress in the form of outdated institutions, laws, and ideas.
Free Republics are Maintained Upon Principles of Righteousness: Liberty will not long endure among a people unresolved to govern their own appetites and place checks upon their own behavior for the good of society. Natural rights are protected by the will of a people well informed and dedicated to the principles upon which Liberty rests.
The moral-political truth or rightness of action is always relative to one's moment in history. Ideas become true just in so far as they help us to get into satisfactory relation with other parts of our experience. The test of the truth of a proposition is its ability to marry what we know to new facts. The reason why we call things true is the reason why they are true. There can be different truths or goods for different people, depending on what is expedient for them. In short, what works for us is true.

**Progressivism Outline from Progressivism and the New Science of Jurisprudence" by Bradley C. S. Watson
At the turn of the century politicians and Americas highest judges began to adopt the progressive philosophies defined above and constructed a new theory of politics and "constitutionalism" and human life that we often refer to as the "Living Constitution." This change has resulted in "the age-old question of "what works" [becoming] increasingly divorced from a sense of constitutional restraint."("Progressivism and the New Science of Jurisprudence" by Bradley C. S. Watson)

"This is a theory adopted more explicitly by judges [who assert] that 'the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.'... Constitutional interpretation therefore involves perceiving and clearly articulating the direction of evolutionary change for an organic document that serves the needs of an organic state... Their aim is to aid a process that is outside the full control of any one individual or institution... The Progressive task is to read the public mind and loosen the chains of society enough to allow individual and social growth... [and] because of the strength and momentum it has gained on its virtually uninterrupted path, its effects will not be reversed any time soon." ("Progressivism and the New Science of Jurisprudence" by Bradley C. S. Watson)

The theory of a "Living Constitution" sounds sophisticated to modern Americans but it is simply a fancy way of describing a law without foundation, a legal theory that can shift and change in any direction provides poor security for Constitutional guarantees. A favorite Sunday School song I taught my children over the years applies well to the comparison of these philosophies as the foundations of law and society.

The Wise Man and the Foolish Man

The wise man built his house upon the rock,
The wise man built his house upon the rock,
The wise man built his house upon the rock,
And the rains came tumbling down.

The rains came down, and the floods came up,
The rains came down, and the floods came up,
The rains came down, and the floods came up,
And the house on the rock stood still.

The foolish man built his house upon the sand,
The foolish man built his house upon the sand,
The foolish man built his house upon the sand,
And the rains came tumbling down.

The rains came down, and the floods came up,
The rains came down, and the floods came up,
The rains came down, and the floods came up,
And the house on the sand washed away.

It is a simple thing to recognize which foundation is the rock and which is the sand in these social philosophies. The last hundred years the new jurisprudence of progressivism has been hard at work moving our house to the shifting sands and the if we continue to allow ourselves to be beguiled by their sophistry we will find that the floods will come and wash us away in the tide.

Fortunately, the foundation of stone upon which our Founding Fathers framed our house can be restored if we don't delay to shore it up. We have a rich body of scholarship on the principles of Constitutional Jurisprudence if the American people can be reacquaint with these stalwart truths.

No comments:

Post a Comment