The following Opinion is by C. Augustus Landis
“Interpreted as it ought to be, the Constitution is a Glorious Liberty document” –Frederick Douglass (1818-1895)
This quotation of Frederick Douglass was his response to William Lloyd Garrison, the fiery abolitionist who burned the Constitution in protest over slavery. Douglass believed there was no need to tear up the Constitution or re-write it because it was a Glorious Liberty document. There are those today who wish to re-write or re-interpret the Constitution to right the perceived wrongs of a capitalist society and to establish new rights in accordance with a socialist agenda. They call themselves Socialist Democrats and social justice warriors but their end is always the same… power and control.
It can be argued the division in America today is greater than any time in our history, including the Civil War. Then, the fundamental issue was the Constitutional issues of disunion and slavery. Today, the existential issues are dueling views on the Constitution, populism, and liberty vs. the threat of the Socialist Democrat ideology. This essay addresses the first of these issues in a continuing series on issues related to the 2020 elections.
In reading the Declaration of Independence and the Constitution it is easy to imagine two of the greatest political philosophers of the 17th and 18th centuries were sitting at the table: Thomas Hobbes (1588-1679) and John Locke (1632-1794). Indeed, all of the founding fathers had studied their treatises’ on natural law, civil government, liberty, and the social contract.
In “Of Commonwealth” (Part2 of the Leviathan, published in 1651), Hobbes writes that in the beginning man lived in a state of nature where there are no laws. Because of conflicts between people, by “mutual consents”, man enters into a commonwealth where absolute rule is by a sovereign which may be a monarch or an assembly. There is no separation of powers and no appeal to a legislative body or judiciary. The founders and thirteen royal colonies in America rebelled against the King of England, Parliament, or any kind of absolute sovereign.
John Locke rejected the ideas of Hobbes and believed that man, living in a state of nature, had certain natural laws of life, liberty, and property. Man had a right to live, be free, and to own that which was produced by his labor. If he grew a crop or built a dwelling on a piece of land it was his property. Any laws beyond these natural laws must be by mutual consent and man had a right and obligation to rebel if laws were abusive of authority.
The first paragraph of the Declaration speaks to it being necessary to break the bonds with England (rebel) because of abuse of authority, absence of consent, and… to assume …”the separate and equal station to which the Laws of Nature and Natures God entitle them.” The second paragraph says it is self-evident that all men are created equal and are “endowed by their Creator with certain inalienable Rights, among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Locke was very much a part of the conversation. The Declaration then lists 27 abuses and usurpations by the King of England constituting absolute Despotism and Tyranny. Imagine in 1776 Hobbes making the argument for Loyalists and Locke making the case for as it was to be.
Note. The right of property Locke asserts refers to the right to own what you acquire as the product of your labor. The founders were concerned this property right might be taken to mean everyone could demand government give them land as a matter of right. Meaning , however, remained as was Locke’s intent. Most certainly, neither Locke or the founders did not mean “the pursuit of happiness” to mean every man had a right to the fruits of labor of others (equal outcomes instead of equal opportunity).
Because the Constitution submitted to the States for ratification did not enumerate rights they believed important and necessary, ratification was conditioned on amendments to include enumerated rights and unenumerated rights reserved to the states and/or the people. Assuredly they did not mean a right to all the free stuff Socialist Democrats now consider rights.
Today, the Democratic Socialists are trying to lead us back to the absolutist sovereignty of Hobbes via the administrative state with judicial allowance of the Chevron Deference (deference to experts) in the vast bureaucracy , promotion of the dialectal materialism of Marx, the utilitarianism of the administrative state, and identity politics of intersectionality.
Originalists, or textualists, believe the words written in the Declaration and the Constitution should be read and interpreted today as meaning and understanding was when written. Those who believe in a living Constitution believe the Constitution should be read and interpreted to meet the exigencies of today. For example, in America’s Unwritten Constitution, 2012,AKIL Amar, acclaimed professor of Constitutional Law at Yale, argues the amendments and interpretations since ratification constitute an unwritten Constitution with many new rights to be addressed based in good measure on who has the power.
In The Second Founding (2019), Eric Foner, historian at Columbia University and and contributor to the Nation, argues the Reconstruction Amendments ( 13th,14th, and 15th Amendments) constitute a second founding and the Civil Rights interpretations constitute a second reconstruction. Also, the New York Time’s 1619 Project endeavors to re-write our history and founding from 1776 t0 1619, when first slaves arrived in Virginia, and to have this be taught in all public schools.
Consider, also, the initiatives now pursued by the Socialist Democrats relating to the founding documents as written vs. a living Constitution:
Article 2, Sec. 1. The Electoral College. The Socialist Democrats think half of population (republican/conservative) is “deplorable”. Parts of the country between the large Democrat urban areas is fly over country populated by “deplorables.” Therefore we must eliminate the constitutional guarantees of representative government provided in the Constitution by the Electoral College and change to direct popular vote in presidential election. Thus, vote of large democrat controlled cities will determine and the flyover parts disenfranchised. Thus, for example, Los Angeles County would have a larger voice in deciding election of President than 43 states.
First Amendment. Congress shall make no law abridging freedom of speech, of the press, or right of the people to people to peaceably assemble. While Congress has made no law limiting free speech or assembly, there is an abundance of evidence showing that free speech and assembly of conservatives is suppressed on college campuses. Trump has taken action by executive order restricting federal funds for this abridgement, but Congress has not. The Left has asserted the right to censure speech they do not agree with or is not politically correct.
Surveys show 95% of reporters vote Democrat and same percent report negatively on Trump. Coverage on some issues favorable to Trump or Republicans are ignored or time devoted is negligible. CNN,,MSNBC, NY Times, and Washington Post, appear to have no other purpose than promoting leftist agenda, over rule the 2016 election and removal of Trump from office.
Second Amendment. Right to bear arms. While this would require a Constitutional amendment, there is a constant demand for regulations to accomplish same.
Fifth Amendment. Due process. While the Kavanaugh confirmation hearing was not a trial, every Democrat Senator voted against confirmation on basis of belief in accuser in spite of absence of proof or witnesses. Again, in the impeachment hearing of Trump in the House and trial in the Senate, while not criminal/judicial trials, due process in the proceedings was much abused in the House, and in both House and Senate the vote was on party allegiance. High crimes and misdemeanors to the Socialist Democrats was reduced to unenumerated offences being whatever a majority of their polity said it was.
Those who believe in a living Constitution also believe there is need of a an ever evolving unwritten Constitution and new “founding’s”. These to be based on inclusion of rights and social justices as perceived in other countries and cultures.
AS Franklin said, we “have a Republic if we can keep it”, Douglass said, the Constitution is “ a Glorious Freedom Document”, lets keep it and interpret as it ought to be and intended.