Commentary

Progressive theory and the Constitution

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U.S. constitutional law depends on the purpose and limitations of our written constitution, which is only modified only through the amendment process (Article V, U.S. Constitution). British common law relies on precedent, clever lawyers and wise judges to update or modify their unwritten, “living” equivalent.

While it is true that a decision by the Supreme Court is current law should not be taken lightly, the decision cannot be legitimately maintained into the future if it expands or contracts the underlying limitations or powers given to government by the people through the constitution.

Woodrow Wilson, 28th President of the United States, was a great admirer of British parliamentary government and its living, unwritten constitution based on precedent and judicial lawmaking. Advocating parliamentary-style governance has given progressives cover while they’ve shredded constitutional limitations on power.

The Founders were acutely aware of government’s ability to abuse people’s rights when power is unlimited. As a result, the U.S. Constitution recognizes that government can abuse the rights of citizens when power goes unchecked. Our written constitution protects the rights of all individuals; the “living” constitutional theory places trust in government’s ability to evenhandedly determine individual rights based on need rather than God-given, unalienable rights. Those who support the living theory either lack the knowledge of human nature that the Founders had, or are cynically using human nature to divide individual rights.

The Constitution notwithstanding, progressives want to use precedent to modify our written constitution without the use of Article V, which clearly states the process for amending the written constitution.  

The law under a living constitution is fungible, relying on precedent for stability. The limitations on power granted to government by the people in our constitutional republic provide our law with stability. While precedent is required for “living” constitutional law, precedent is less binding on our written constitutional system because there are no decisions any court in the land can issue that modifies the written constitution. It is primarily unconstitutional precedent that leads to instability in a constitutional system.

The practitioners of progressive theory, as envisioned by Woodrow Wilson, have worked hard to morph our written, constitutionally-based government into a parliamentary, precedent-dominated government with legislators and judges writing our laws and modifying (unconstitutionally) the limitations on power established by the people through the constitution.

Today, precedent is creating law at odds with the purpose and concept of our written constitution. Article VI of the U.S. Constitution in its second clause states that the U.S. Constitution is the supreme law of the land and any state constitution or law that does not conform is not law and null and void.

Unfortunately for the citizens of our nation, progressives are shifting our government from a constitutional republic to a British-style democracy based on precedent and stare decisis. The essential difference between the two forms of government is the difference between a written constitution and a common law, “living” constitution. Our government’s purpose is to preserve and protect our unalienable rights and individual liberties from foreign and domestic interference. The system beloved by progressives gives legislators and judges the power to determine individual rights based on precedent, penumbras and emanations of the living constitution.

“History teaches us the unfortunate lesson that cultural values supplant constitutional rights whenever the cultural elite consider a right too burdensome to suit the needs of the moment.” -Robert Dowlut

Will rational recognition of human nature save our magnificent, unique constitution and way of life, or will cultural values, emotion and feelings reduce us to state-run misery?

About John MacGregor

John "Jock" MacGregor is a student of history and politics, a pursuit he has enjoyed for most of his 79 years. Jock attended Villanova University’s School of Education; served in the U.S. Marine Corps; and is an entrepreneur with enterprises in restaurants, construction and boatbuilding. Mr. MacGregor was managing editor of an online news site in Hot Springs Arkansas. Currently, Jock comments on the role of government in society. Jock believes in a constitutionally limited government, instituted by the people, to protect their rights to life, liberty and property.

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