Health care and justice: Reply to Sasseen

Your understanding of the health care debate is truly comprehensive and thoughtful. We must always be concerned with both individual rights and the common good. You have shown the way to deal with the present crisis in a way that is consistent with the Constitution and distributive justice. I do wish to make a few points. First, whatever the requirements of the common good, the constitutional question is crucial. That is, we are a people in virtue of the Constitution, which has formed our habits and shaped our character. These have contributed mightily to a market economy which not only distributes goods and services more efficiently and more abundantly than any other society, but has aroused expectations and even enriched and thereby empowered government agencies. We now desire universal health care because we have gotten closer to it than would have been possible in the market economy's absence. We are enduring the crisis, if not the revolution, of rising expectations.

Socialists can only dream of redistributing the wealth in the presence of the hated capitalistic system that generates massive wealth to redistribute. The socialists' quarrel with capitalism is not over its productive capacity, which even Marx more than acknowledges in the Communist Manifesto, but over its alleged failure to distribute the profits fairly. We need to be sure that, in dealing with the present difficulties, we do not "kill the goose that laid the golden eggs." That may sound trite, but we are talking about preserving our constitutional system that has brought us so many economic as well as political and social benefits.

The fact that private health insurance covers so much more than homeowners' or automobile insurance indicates just how much our expectations have been aroused. Home and auto insurance covers calamities beyond the normal or "daily recurrent needs of the household." Health insurance seeks to cover practically everything related to health, including routine office visits. More than this, the government, through Medicare and Medicaid, does much the same. The result is that most of us make health care decisions on the expectation that someone else will pay--at least directly--for them (even if we pay in the end through premiums or taxes).

We are acting less like self governing citizens of a free republic than like wards of the corporate and bureaucratic state, however benevolent. Proposals to micromanage this already socially generous system or even to replace it with a government bureaucracy threaten the constitutional order which made this generous health care financing possible. This restraint takes the form of many citizens' manifest preference for practically anything but what Democrats are now proposing, which is to scrap the free market in health altogether. Our regime made us what we are, including our generous and advanced health care.

My second point concerns the dynamics of democracy. Our constitution was established to temper and moderate the demos as much as possible, consistent with the equality and liberty sought by our people, and the authority of the majority to make public policy. While it is certainly true that democracy, in some sense, always threatens our delicate constitutional order, it is also true that in the public mind (perhaps not in the "theoretic politician's" mind) our country is not merely a democracy.  Citizens cherish constitutional restraints and protections no less. I think it remains rhetorically effective, as well as true, to appeal to the Constitution as the source of our political prosperity and not merely to defer to majority rule or to acquiese in its ultimate triumph over constitutional restraints.

The Republican party is the institutional vehicle for keeping us true to our national heritage, and it is currently doing as good a job of defending us as can be expected under the circumstances. The Democratic party, or what its founders called the Democracy, is the enemy of constitutionalism. To the extent that we Republicans make that case, we make the case against unrestrained democracy. The rule of law includes a healthy and free marketplace and not just the formal laws that govern it (not to mention the infinitude of bureaucratic rules that burden it).  That is the meaning, I believe, of your distinction between regulating commerce and managing it.

Finally, however much Hobbes and Locke have in common on the state of nature and the state of civil society, their starting and ending points differ. Because the state of nature for Hobbes is "solitary, poor, nasty, brutish and short," he opts for a monarchy over a democracy to govern it. He does leave the door open in theory to a democracy, but few readers of Hobbes believe that he has high hopes for it. On the other hand, for Locke the state of nature is "inconvenient," with all sorts of unresolvable disputes that require a settled, known law to adjudicate them. His preference for democracy is not only not theoretical but explicit, and the king is reduced to a mere executive with some but not all of the monarchical powers. In short, warlike mankind needs a monarch, according to Hobbes, whereas squabbling mankind requires a large element of self government through democratic institutions, according to Locke.

Locke, if he does not prescribe duties at least makes it far more likely that men will freely assume them because they are free to accumulate goods and therefore more able to provide for themselves and others, and even to support a government without being excessively burdened. This is another way of saying that the limited government and market economy that Locke did so much to foster satisfies the demands of the common good very well indeed.

We run the risk of "throwing out the baby with the bath water." Preserving our constitutional system is the key to maintaining our public health.

Is health reform a matter of justice?

(Author: Robert F. Sasseen) Is affordable healthcare for all a question of individual rights, or a requirement of the common good? The public debate in the US seems to assume that it is both. It is not my purpose here to examine what reforms are necessary or wise, but to identify some of the issues of justice implicit in the debate Is There a Natural and Individual Right to Health Care?

Most believe that the US healthcare system needs reform. Why? Because it has become too expensive and too many are left out. All seem to agree on that. So the public debate is focused on how to fix the system, not whether it needs fixing. It is asserted that 46 million Americans do not have access to health care. Strictly speaking, that's not true. Millions of them could, but choose not to purchase health insurance. But let's not quibble over the word "access." In the USA, the door to health care is open to all in the sense that no law prohibits entry to anyone. It remains open even to those who choose for whatever reason not to enter. But isn't the door effectively closed to all who choose not to enter because they can't afford to pay the cost of the care available inside the door? Don't they have an individual and natural right to the care they need? If every individual is by nature entitled to affordable health care as a matter of individual right, then is it not the duty of government to make sure that health care is available to each and all? Indeed, this is the view of some who argue for a national healthcare system established, managed, and regulated by the Federal Government. They argue that it alone is big enough, powerful enough, and wealthy enough to provide affordable (and equal?) health care for everyone.

A question of justice arises with respect to things to which I am entitled by positive law, natural right, or divine command. If there is no entitlement , my lacking a good I desire (say, a room with a view) is not an injustice. Nor would it be just to tax another to pay for that room. But what of life's necessities? Am I not entitled to food, clothing, shelter, education, and healthcare? If so, doesn't justice require that another help provide them for me, at least if I am a child, or poor and destitute through no fault of my own?

Perhaps. But first, what is the ground of that entitlement? No question of an individual right arises if there is no entitlement to the good which is lacking? Some believe that my entitlement arises from my natural right to life, liberty, and the pursuit of happiness. If I have a natural right to life, do I not also have a right to the things necessary to preserve my life and to achieve the happiness I naturally seek ? Is that not logical? Seems so. But how does my right become another's duty to help me?

Classical Liberalism (e.g., in Hobbes and Locke) struggled with that question, not quite successfully in my opinion. In that view, the duty of another to assist me arises from the transformation of my natural rights into civil rights through the "social contract" and the laws established by a legitimate government to maintain the "state of society." In the "state of nature," there are no natural duties arising from my natural right to seek the goods I need. My natural neediness is not the ground of another's duty to help me. My natural right to acquire the goods I want leads to the war of each against each. The goods we need are naturally scarce, there is no natural law, and no executive power capable of enforcing it if there were such a law. I am not naturally my brother's keeper. Thus life in that state of nature is "solitary, poor, nasty, brutish, and short." The purpose of the "social contract," and consequently the duty of government, is to put an end to that war and to establish the conditions, (primarily law and order), which are necessary for the security, peace, progress, and prosperity of society as a whole.

St. Paul once admonished the Thessalonians that "if anyone will not work, let him not eat" [2 Th. 3.10]. Fathers once admonished their children that "the world doesn't owe you a living. Neither does your neighbor. It is your responsibility to provide for yourself and your family." That was a salutary teaching consistent with the harsh facts of life, the natural rights teaching of our Declaration of Independence, and the preservation of freedom and limited government in a democratic republic.

Is Affordable Health Care a Requirement of the Common Good?

What about all those who can't provide life's necessities for themselves? What about the "widow and the orphan," the poor, the handicapped, the disabled, the defeated, the downtrodden, the "marginalized," and all those who suffer "the slings and arrows of outrageous fortune"? If they have no natural and individual right to health care, are they to be left to suffer and die?

Of course not! Compassion forbids it, as does Charity. But compassion is not a virtue, and charity is not the same thing as justice. The "Good Samaritan" aided that particular victim. He did not organize a political party to demand that government create a program to aid all victims everywhere. It is good for society to foster the development of compassion, charity, and the cardinal virtues in its members. But the question we are exploring is whether universal health care is a requirement of justice and therefore a duty of government to establish and to guarantee. Government may have that duty. But according to the originators of the modern natural rights doctrine, its foundation is not in the natural right of needy individuals to life, liberty, property, and the pursuit of happiness. That duty, however, may be inherent in the nature of society and the purpose government."

Now we wish to consider whether the provision of affordable health care for all is a requirement of the common good.

Essential elements of the common good are succinctly stated in the Preamble to the Constitution of the United States: Its purpose is "to form a more perfect union, establish justice, insure domestic tranquility, promote the general welfare, provide for the common defense, and secure the blessings of liberty to ourselves and our posterity." Health is a good thing. Sickness is a bad thing. We naturally seek the first and wish to avoid the second. Health care is necessary for both. My own health is my private good. A healthy population is a public good. An adequate system of health care open to all is a common good, part and parcel of the general welfare. It is therefore a proper function of government to promote its establishment and to govern it operation through appropriate laws.

It is necessary to make some distinctions here. The Preamble to the US Constitution does not grant the Federal Government a specific power to do anything. Its specific powers are enumerated in the body of the Constitution. Other powers (over education for example) belong to the nature of government in general, but are not included in that enumeration. They are reserved to the States or to the People (Article 10). This fact is relevant to the determination of the proper role of the Federal Government with respect to our healthcare system. It is also necessary to understand the distinction between the power to govern, to regulate, to manage, and to administer; as well as the difference between laws, rules, and regulations.

Few would deny that an adequate system of healthcare is part of the general welfare. Most would agree that it is legitimate for government to promote its development and to enact appropriate laws governing its operations. Some laws might be very controversial. For example, laws prohibiting discrimination against illegal aliens, deliberate killing, experimentation on humans, cloning, eugenic cleansing, abortion, embryonic stem-cell research, euthanasia, "mercy killing,"or doctor-assisted suicide. But few contest the right, or even the duty of government to pass laws of that nature--i.e., laws as distinguished from rules and regulations. It is a proper function of government to govern, but not necessarily to manage or administer the country's healthcare system.

It is conceivable that the common good may, in some circumstances, require the government itself to establish and manage a healthcare system, or to "nationalize" an essentially private one. Some believe that "socialized medicine" is the best way to go. But it is a question worth considering whether such a system is compatible with liberty, with the duty of government "to secure the blessings of liberty to ourselves and our posterity." There are several essential elements in the common good. It is the duty of government to attend to them all and not to sacrifice one to another. That requires prudence and moderation in the government and in the people.

Who Benefits? Who decides?

Women and children first” shouted the captain of the sinking ship. “First treat the slightly wounded” ordered the field commander in desperate and immediate need of more soldiers. (Some military doctors wanted to treat the severely wounded first, to prevent their dying.) As to the availability of health care in general, some demand affirmative action for minorities and a “preferential option for the poor” in the name of justice and human dignity. They are many and needy. A few insist that priority should be given to those who most benefit society. Others hold that equal treatment is the proper principle. They differ whether equality means equal eligibility for each person, or proportionally equal financial support “to each according to his need.” Still others take a more pragmatic approach that others reject as inadequate and insensitive. “First, don't bankrupt the country. Second, don't take over the healthcare system or usurp powers not constitutionally authorized. Respect the proper role of state and local governments, as well as private, intermediary associations. Third, require all to purchase private health insurance open to all, and remove restrictions on the insurance industry that inhibit competition and restrict its territory. (Government should be insurer of last resort for the deserving poor.) Fourth, focus health care on the condition and futures of the different age groups. Provide health education and preventive care for all; remedial and curative care for children and adults who can be restored to useful life; only palliative care for the rest--particularly for seniors running out of gas. No extraordinary procedures or inordinately expensive measures for any person who can't pay for them.“

It is impossible to avoid rationing and setting priorities so long as health care is a scarce good and the demand is virtually without limit. Such issues are in substantial part questions of distributive justice. But who is to decide? Some of them are decided in the market place by what insurers and sellers of health care can afford to offer, and buyers can afford to purchase. Some are decided by government, in the subsidies or funding it provides and in the general laws and regulations it establishes for health care. Some are decided by the doctor and patient together. Many American's prefer that rationing decisions be made as close to home as possible--between the patient and his doctor.

It is characteristically human to “want something for nothing,“ ”to have our cake and eat it too,“ to have ”third-party payers“ for the goods we want. There is never enough money to do everything we desire. Choices must be made and priorities set, not only within the world of health care but between other elements of the common good. Universal healthcare may be very desirable, but self-defense and victory in war more imperative. Government must decide among competing goods and competing “values.” The struggle for power and deliberation about what is best are the very stuff of politics. We want the People to decide, and that is why we favor democracy. “Power to the People!“"

"Justice is the advantage of the stronger“ asserted the ancient Sophist. The law declares what is just and unjust. The winner of the struggle for power is by definition the stronger and makes the laws according to the “values“ of her class or his winning coalition. It is no surprise that too often those “values“ both rationalize and favor the interests of the winners in the struggle for power. Contemporary Liberalism offers no defense against such a cynical view of justice and politics. At bottom, that is its own view.

"Don't tax me. Don't tax thee. Tax that rich man behind the tree!” If there aren't enough of those, keep borrowing or printing the necessary money until the bubble bursts and the economy collapses, hopefully sometime in the distant future. “Do not suffer today what can be put off till tomorrow.“ That appears to be the natural way of democracy.

Conclusion.

Much is at stake in this healthcare debate. The dominant opinion of justice and what it requires of government is one of the main causes of its form and policies. The view that justice requires government to guarantee or provide universal and affordable health care is a particular instance of the Marxist principle of justice. ("From each according to his ability, to each according to his needs.") The triumph of that view of justice could eventually bring in its wake the tyranny inherent in the Marxist principle, as our experience of Communism demonstrates.

Frank Rich: proof positive that the left doesn't get it

Frank Rich, the former NY Times drama critic turned left-wing opinion guru, has today written an opinion piece which provides a great window into how liberals view the world. Not surprisingly, they believe that only right-wing fascist nut-jobs are crazy enough to oppose their enlightened policies and programs. There is no rational, intellectual basis for why conservatives do anything -- except to roll the clock back to the dark days of back alley abortions and segregation.  Its a caricature worthy of a comic book. Rich sees the uproar over the New York 23rd Congressional district race as a sign that the Republicans are in a civil war between "reasonable moderate Republicans" and right-wing conservative ideologues of the Glenn Beck/Sarah Palin school. And, predictably, he believes that it will show the nation that the Republican Party is lurching rightward, to a place of armed militias where "angry white men" stalk innocent women, children and minorities. Rich sees what has happened in New York as a "gift" to the Democrats -- and says that the Republican infighting will be "a gift that keeps on giving to the Democrats through 2010, and perhaps beyond." This view, of course, reflects a belief widely shared among liberals that the "rest of America" doesn't share the basic values that have spurred the pro-Doug Hoffman movement -- limited government, low taxes, and fealty to the Constitution.

According to Rich, such beliefs are "wacky and paranoid":

"The battle for upstate New York confirms just how swiftly the right has devolved into a wacky, paranoid cult that is as eager to eat its own as it is to destroy Obama. The movement’s undisputed leaders, Palin and Beck, neither of whom has what Palin once called the “actual responsibilities” of public office, would gladly see the Republican Party die on the cross of right-wing ideological purity. Over the short term, at least, their wish could come true."

This is typical left-wing spin. The Republican Party in upstate New York hand selected a liberal Republican who fully supports the Obama stimulus and is both pro-choice and pro gay marriage -- a candidate who is clearly out of step with the conservative demographics of the district. The uproar was created not because of a cabal of "wacky cultists" but because conservatives want a candidate who is not on the Obama socialist bandwagon. That's hardly a radical position. Rich makes it seem -- as liberals often do -- that if you aren't for abortion-on-demand and deficit busting spending you are some right-wing zealot. They are so certain of the moral rightness of their positions that anyone who disagrees is crazy, stupid or both. It is the height of arrogance.

"The more rightists who win G.O.P. primaries, the greater the Democrats’ prospects next year. But the electoral math is less interesting than the pathology of this movement. Its antecedent can be found in the early 1960s, when radical-right hysteria carried some of the same traits we’re seeing now: seething rage, fear of minorities, maniacal contempt for government, and a Freudian tendency to mimic the excesses of political foes. Writing in 1964 of that era’s equivalent to today’s tea party cells, the historian Richard Hofstadter observed that the John Birch Society’s “ruthless prosecution” of its own ideological war often mimicked the tactics of its Communist enemies.

The same could be said of Beck, Palin and their acolytes. Though they constantly liken the president to various totalitarian dictators, it is they who are re-enacting Stalinism in full purge mode. They drove out Arlen Specter, and now want to “melt Snowe” (as the blog Red State put it). The same Republicans who once deplored Democrats for refusing to let an anti-abortion dissident, Gov. Robert Casey of Pennsylvania, speak at the 1992 Clinton convention now routinely banish any dissenters in their own camp."

Rich's misread of what is going on here is just staggering. Fortunately for conservatives, Rich's view of the summer tea parties and the conservative awakening is typical of the liberal establishment, which believes that its 2008 election victory marked a fundamental shift in America's politics from center-right to center-left.

The Democrats just don't get what has happened in the 9 months since Obama took office and began his naked power grab. The mood of the country has changed -- and the Congressional race in New York is a reflection of the level of frustration that conservatives have over what is taking place in this country. The more dismissive Rich is, the better it will be for those who want to take back the country in 2010 and 2012. Its a freight train coming, and the left remains deaf and blind to it.

Shhhh...let's not tell them the truth, ok?

High court's power grab may backfire

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government — and the voters — to a perfunctory role. The high court's activist majority used Lobato vs. State not only to intrude on the legislature's constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review.

So much for separation of powers, consent of the governed, or checks and balances. In fact, the Lobato ruling leads to the obvious question: "What's left to check or balance the court?"

The majority opinion, written by Justice Michael Bender, represented such a stark — and sometimes disingenuous — departure from established precedent that Justice Nancy Rice, who frequently sides with the activist majority, instead joined two originalist justices in dissent.

A collection of school boards and parents initiated the lawsuit in 2005, contending the legislature should increase K-12 education spending by as much as $500 million a year — as if the state could find $500 million under the couch cushions.

Two lower courts dismissed their claims, finding that the state constitution provides no quantifiable standard — other Amendment 23, which the legislature has thus far implemented — to determine funding sufficiency. Thus, the courts ruled that K-12 spending is a "political question" which the constitution specifically places within the authority of the legislature and beyond the court's purview.

However, the supreme court's majority selectively quoted and distorted the law and its own precedent. Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.

Bender's decision devotes five pages mostly to quote law school textbooks and journals — which have no force of law — to argue that the "political question doctrine … should be abolished."

Incredibly, Bender — joined by Chief Justice Mary Mullarkey and Justices Alex Martinez and Gregory Hobbs — reasons that failure to hear the plaintiffs' claims would "give the legislative branch unchecked power." Is the majority so infatuated by judicial supremacy as to forget that the legislature is routinely checked by the governor's veto and by citizens' initiatives?

In her dissent, Justice Rice demonstrates that a judge can be liberal in applying the law while still acknowledging that even the courts must be constrained: "Chief Justice Marshall noted that without the restraints imposed by the political question doctrine . . . the other departments would be swallowed up by the judiciary."

Rice — joined by Justices Nathan Coats and Allison Eid — argues that, when the constitution says "the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools," authority is clearly conferred upon the legislature and not the courts.

She also scolds the majority for twice distorting the court's 1982 Lujan ruling on school finance.

Bender asserts that Lujan explicitly established the court's authority to review public school finance. Rice corrects the record to show that the Lujan court said, "[O]ur sole function is to rule on the constitutionality of our state's system" (emphasis added) not "whether a better financing system could be devised."

Rice goes one better in dismantling the majority's argument that "the Lujan court engaged in a rational basis review of whether the state's system violated the 'thorough and uniform' mandate." She retorts: "This is simply untrue – the Lujan court never references any test for 'thorough and uniform,' uses the words 'rational basis,' or posits any standard of review."

In fact, the Lujan court left those determinations to the legislature because it was "unable to find any historical background to glean guidance regarding the intention of the framers."

That's the important distinction between originalist judges — who believe their job is to apply the laws as written and to seek guidance from those who authored them — and activist judges — who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.

Ironically, Bender, Mullarkey and Martinez stand for retention in November 2010. Perhaps then voters will exercise their own "checks and balances."

Mark Hillman served as senate majority leader and state treasurer. To read more or comment, go to www.MarkHillman.com.

Constitution Day 2009

Perpetuation of Our Political InstitutionsBy Greg Schaller

On September 17, 1787, thirty-nine of the delegates at the Constitutional Convention, having met for four long, hot, and humid summer months in Philadelphia, had finally completed their task. On that day, they lined up and signed their names to the completed document. The debates had often been heated and the disagreements significant, concerning the powers of the national government, the representation of the states, and, of course, slavery. Yet in the end, the final version was a Constitution that has endured for over 221 years. It is the longest surviving, working constitution in the world today. The Constitution is indeed worthy of respect and honor because of its long survival. But survival of a regime and survival of a constitution is not good in and of itself; just as survival of a tradition isn’t good for its own sake. The perpetuation of a tradition or a Constitution must be judged on what it is, not simply on its endurance. We can all think of many examples of governments around the world that are surviving, but that we (as well as its citizens) would certainly prefer to see fail.

Abraham Lincoln delivered the eulogy for a man he admired greatly: Henry Clay. Clay was an early leader of the Whig party, to which Lincoln was a member before the Republican Party emerged. In his eulogy, Lincoln said of Clay: “He loved his country partly because it was his own country, and mostly because it was a free country; and he burned with a zeal for its advancement, prosperity, and glory, because he saw in such the advancement, prosperity, and glory of human liberty, human right, and human nature. He desired the prosperity of his countrymen, partly because they were his countrymen, but chiefly to show to the world that free men could be prosperous.”

Henry Clay was patriotic toward his country. But his patriotism was not a blind faith loyalty based simply on the fact that he resided here. It was a loyalty to both the principles of the founding and the Constitution crafted from those principles. Lincoln shared this loyalty and dedicated his presidency to the preservation of the Union and its Constitution. However, Lincoln would have been the first to admit that had the Union not been worth preserving (because of what it was about), it certainly wouldn’t have been worth the loss of over 600,000 lives in the Civil War in order to preserve it. So what was and is so significant about our Constitution that Lincoln was convinced that waging a lengthy war at the cost of so many lives was indeed worthwhile.

When we discuss the significance of the struggle to preserve the Constitution, we need to be clear on two things: first, what exactly are we preserving; and second, what is the nature of the attack that is being made against it.

Be clear, our Constitution is under attack. The center of the attack is made against the two things Lincoln thought were so important to save: the Constitution and the concept of the “rule of law” that is essential to the Constitution’s preservation. The method of attack is two-pronged. The first is to debunk the text and original meaning of the Constitution. The second line of attack argues that we can re-interpret the text whenever we deem it necessary and when it suits our purposes.

Today there are two primary and competing schools of thought when it comes to Constitutional interpretation. The first school is described well by former United States Supreme Court Justice William Brennan.

In a speech delivered at Georgetown University in 1985, Brennan claimed 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.”

What Brennan was in fact saying was that the text of the Constitution really has no meaning, or a least no meaning other than what we happen to decide to give it today, regardless of whether our modern interpretation has any resemblance to the intent of its authors. This perspective is also unconcerned as to whether or not our interpretation will be completely different in 50 years, 20 years, 1 year, or even tomorrow. What Brennan describes is a school of constitutional interpretation that favors a “living” or “evolving” constitution. The meaning of the text is no more than what we choose to give it, and we grant ourselves great latitude to change our interpretation any time public opinion has changed.

It is this school of interpretation that has given us the remarkable constitutional “reasoning” in several recent cases of, “the evolving standards of decency.” This argument has been put forth most notably in recent capital punishment cases. To see how this works, considering two recent cases will suffice. In 1989 the Supreme Court concluded that it was constitutional to execute individuals with low I.Q.s. The majority concluded this because there did not exist at the time a consensus among the states as to whether or not such practice would offend the 8th Amendment. However, just a few years later in 2002, the Supreme Court concluded that we could no longer continue this practice. Why? Because of the “evolving standards of decency.” According to this interpretation of the Constitution, the 8th Amendment prohibition of cruel and unusual punishment is completely dependent upon public opinion! Thus the rightness or wrongness is not determined by the text of the constitution, the principles behind it, or the intent of its authors. Rather, it is simply the adaptive interpretation as exhibited through public opinion. This understanding assumes that constitutional interpretation is simply majority will and that this will determines the rightness or wrongness of something. Of course, if we follow this argument to its logical conclusion, the institution of slavery was right, as long as it had popular support!

The competing school of interpretation argues that rather than having a living and evolving meaning, the Constitution has an “original intent”, and that American jurisprudence is based upon it. With this understanding, our application of the laws, and interpretation of the Constitution is bound by the intentions of those who ratified it. Obviously, this interpretation is in stark contrast to the constitution of Brennan that has no “static meaning”, and is forever adaptable.

If we view our Constitution as meaning only what we want it to mean, when we want it to mean that, we are violating the principles of rule of law and constitutionalism. Rule of law is based upon the need to have consistency of law, equal treatment of the law and everyone being “under” the law. Central to the need for consistency of law is that the law, and more importantly, the Constitution from which our laws are crafted, has a sense of permanence that is not easily altered. I am, of course, not making the argument that our Constitution is perfect, nor am I saying that improvements to it are impossible. The point is that there is a proper and deliberate method of changing the Constitution through amendments. The answer to changing the Constitution is not to have five Supreme Court justices simply redefine the terms for us, nor for we as the citizens of the Constitution to be disinterested or apathetic and idly watch as infringements on our Constitution take place through executive and legislative fiat.

Lincoln warned us that the greatest threat to the Union would not come from an outside force, but instead, from within. In his famous Lyceum Address, he stated: “At what point, then, is the approach of danger to be expected? I answer, if it ever reach us it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher.”

The title of Lincoln’s Lyceum address was: “The Perpetuation of Our Political Institutions.” His audience was somewhat stunned that he would question the survival of the Union and her constitution. When he delivered his speech in 1838, most of his audience had concluded that the country was a well-oiled machine with no chance of faltering. Of course, it was not long after that speech that the Union did face its crisis of survival. Lincoln believed that the seeds of the movement toward secession, when the South refused to accept the results of the constitutionally held election of 1860, were sown decades earlier, when a growing mindset of disobedience to law and a weakening of the loyalty to the Constitution was growing.

My point is not to be an alarmist. Rather, it is to have us return to Lincoln’s concern for the nation: does she reverently hold to the hard work laid out by the founding fathers, the principles of the Declaration, and the Constitution created in order to establish a More Perfect Union? Failing that devotion, a breakdown of constitutionalism and rule of law are certain to take place.

Greg Schaller (gregory.a.schaller@gmail.com) teaches political science at Colorado Christian University and serves as a Centennial Institute Fellow.