The enduring methodology, which our country can survive without, is a philosophy of constitutional law that relies on abstract principles of natural law metaphysics. Any legal epistemology or theory of knowledge, which is defined through speculation concerning transcendent truths, is an undertaking best left ambitious philosophers.
Constitutional interpretation does not require a secret natural law decoder in order to decipher the language of the constitutional text. While the constitution is the legal manifestation of the natural law principle contained within the Declaration of Independence, the extent to which these principles apply to constitutional interpretation is narrowly limited; the beautiful ideals expressed in the Declaration provide only a supplemental resource which can be used to define certain rights retained by the people. In addition, other documents rooted in our basic law traditions, when observed objectively, may also provide a resource for understanding various substantive rights protected and secured by our written constitution.
Many students in law school are provided with an abstract, rather than a textual approach to constitutional law. The liberal side of the constitutional equation is geared up, fired up, and ready to challenge my shift in the balance of power; imaginative intellects can find any right, justify any social cause, pursue any political agenda, and discover any protection found in the constitution by skillfully” rationalizing” natural law concepts. The Ninth Amendment of and the Due process clause of Fifth and Fourteenth Amendments especially aids the marvel of a legal rubric. Yet, the extent to which these constitutional secures fundamental or natural rights is often misplaced. For example, our founders believed the protection of individual liberties was best secured by the maintenance of the federal structure, the balance of power among the branches, and the assurance of state sovereignty.
In everyday practice, the natural law concept is disguised using the fancy constitutional tongue of fundamental rights. New individual protections and rights are found circulating the ambit of the constitution – most importantly, some laws are invalidated simply because they violate the theory of natural justice. In any event, the constitution, the political will of the people, becomes the subject of legal theory.
Over the past few decades, many liberal courts of law have performed legal acrobatics by unearthing fundamental rights verbiage buried in the text of the constitution. Like explorers on a treasure hunt, it seems as if judges may privately declare eureka when they reveal a new un-enumerated right. To some of these constitutional miners, new rights may even be circulating around a virtual orbit of the constitution: in this case for the first judge, lawyer, or professional who can seize these rights and protections for all Americans, their names shall be immortalized in book, stone, and praise!
Maintaining the status quo regiment is the source of all liberal authority; the media, many of our nation’s newspapers, and the classrooms are tour de force, which all contribute to the thwarting of innocent and accepting minds. The unfortunate result of this phenomenon endangers not only the obedient student, but also the common man’s ability to understand the constitution on his own terms. Does the constitution does frame a government by and for the people? Why many of our fellow American so puzzled by the people’s document? Why have so many “rights” been protected and supplied to us by the Supreme Court counter to the majority sentiments? Are NOT the states the original protector of our rights, privileges and fundamental liberties? Lastly, who is responsible for these anomalies? Thus, as student of law, we must be prepared and able to detect the tricky rhetoric of trained sophists, least we fail in our civic obligation to the untrained ear.
With all due respect to our esteemed professors, Doctor of Law, legal protagonists, and any elite lecture remaining in liberal armory, I launched this rhetorical counter attack on behalf of the students of America who are prepared and eager to think independently. In doing so, I hope many of us may individually reassert our own un-written right of free expression. This Essay was composed not to address the specific thoughts of all students but rather to provide a general outline of a common trend that has historically taken place within the hallowed halls of conspiring ivory towers across our great nation. My aim in this endeavor is not to create mischief among a population-it is merely to expose the many flaws of what we are taught to believe, and hopefully to elucidate a proper response to the dangers accompanying mass conformity.
The epidemic as discussed above leads to the abuse, which I call “Reverse constitutionalism”
Reverse constitutionalism is the process by which interpretation of our most sacred document begins with extra-constitutional beliefs in the most abstract form. Liberal academia and judges, whose fidelity to the constitution is overshadowed by their almost-irrational quest of “creating” or “foreshadowing” new fundamental rights and liberties via the 14th Amendment, mainly perform this practice. An examination of the constitution begins by appealing to the hierarchy of law, which places natural justice at the crest and the original meaning of the constitution at the through. Thus, natural law ideals become the basis for extending the meaning and language of the text beyond the “specific traditions” and historical understandings that originally framed our document. There exist no idea that is too grand; there are no principles to remote that cannot be found wandering in the constitution. The result is always the creation of new fundamental rights or the illumination of “ancient” ones contained within our “social consciousness.
The process of reverse constitutionalism provides that what the constitution ought to be is more important than what the constitution is in reality. Ironically, the first cause in this formula is the teleos or end product of our human desires and ideals. At times, many of these ideals have nobly provided for the best and must essential changes to society, and such as equal protection under the law. At other times, these same ideals have abolished any regional differences that may have been possible if the majority of each state maintained their sovereign right to legislative self-governance, such as school prayer, abortion, criminal investigation, and even protecting our American flag.
At best, the attitude of those who utilize this epistemology of non-originalist constitutional interpretation is caviler-at times it is often arrogant. Reverse constitutionalism is a mystical performance because it is grounded on natural justice and legal principles, which are often unattainable and have eluded agreement, by even the best minds of history. Nevertheless, some judges choose to utilize natural law as a means of legal reform. The unfortunate result of this amusement occurs when judges test positive law against principles of natural justice, thereby invalidating a state or local law. Courts of law do no truly possess this monarchical power.
Throughout this process, a thorough investigation of constitutional text may never take place. The limited meaning of a constitutional phrase becomes a broad directive of overextending rights and protections, the reach of the central government erodes at the federal structure relationship, and the regional legislative differences that our founders once envisioned becomes a memory of retreating Republic. Upon reflection, we who measure the quality of life by the sanctity we hold for the constitution, pose the following questions. In two hundred years from now, what will our constitutional jurisprudence resemble? Will our constitution continue to reflect the social, civil, and political agenda of activists few? Will our constitution continue to enlarge in synchrony with the intellectual philosophies of man? For the sake of our great nation, for the love of our constitutional origins, I pray for a gradual return to legislative difference both in the national and state spheres. I submit not that we repudiate decades of constitutional jurisprudence but rather that fundamental and natural rights are best defined through the legislative process, which were during a time in our great Republic, the proper suppositories for extending and securing the rights of all men.
Celerity in a republic, to reach absolute truths about the constitution, may benefit the public in the immediate sense, however, the sunshine of new rights soon becomes overshadowed by reoccurring constitutional misrepresentations. Judges and liberal elite are so apt to reach the teleos or the right answer in law that they often miss the correct answer and, as a consequence, do so without close examination of the repercussions accompanying their haste. The nationalization of all laws can only bring about the end to our divers Republic. The law must not advance at the pace of societal forces; there must be an ever-present steady advancement to all law. When laws advance quickly, like they have done so in the past few decades of constitutional jurisprudence, the future of our Republic is uncertain. The Law is the stabilizing force in society, not the impetus that causes dramatic changes to the structure of our American polity. Rome inevitably fell because their legal system surpassed their way of life. In other words, Rome assured its own demise by overextending its constitutional structure in order to cope with changing and dynamic societal forces. Likewise, as the individual States of America are forced to accept new legal doctrines as expressed by our national court, so too will the structure of our Republic erode in the same fashion as ancient Rome. In this spirit, constitutional interpretation requires endurance: it is a marathon, not a sprint. To be continued…
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