Difference between revisions of "Notes:BC1.L&C.Constitution 1"

Latest revision as of 16:53, 3 April 2016

Consent was the basic idea that all men are created equal. Gov't can only arise justly out of aggrement - the agreement by all to be ruled. What happens when govt fails to do its basic job of securing the rights of the individual. Do not have to keep consenting to it after it misbehaves. Then have a right and duty (says DOI) to get rid of the govt and put one in its place that does its job of securing rights

• Principles of founding stated in DOI. Moral basis of state and federal constitutions.*
• Scholars now see the founding as the result of a list of things

• Natural law/rights
• Protestantism
• English legal tradition
• Republican virtue
• US Constitution

• Not true - only one makes correct government intelligible - the founders principles of Natural law/rights
• Conservatives have a problem with founders natural rights theory. They equate equality and liberty with 21st century liberalism
• Liberals believe that founders understanding of rights is too narrow.

• It did not include the rights listed in FDR's 2nd Bill of Rights and UN of 1948 universal declaration of Human Rights.

• Essentially a right to a minimum standard of living.

right to social security

rest and leisure

standard of living sufficient for health and well being of self and family

others

• H Clinton has added that leading object of foreign policy is to protect rights of LGBT worldwide

Founders were unable to form a government that would include these rights.

• Founders clearly opposed slavery. Ended it in 8 states and outlawed it in future new states

What are the founding principles

created equal

life, L & PH

consent of governed

Few today understand them in the founder's sense.

• Today, founders views are repudiated because they did not embrace the added rights.

• for example, equality means that every person should have the same resources as all others for the purpose of the UN Declaration. "The economic, social, and cultural rights indispensable for his dignity and the free development of his personality."
• For example, progressives today view jobs as benefits to be distributed by government for the benefit of groups considered disadvantaged by government. Liberty today means that, for example, that a formal legal right means that if you can not afford it, the government must provide it - housing, transportation, etc.

The founders conception - the right to liberty was the right to be free of the coercive interference of others. Not the right to demand money and services from others - except in rare circustances.

Why focus on the Declaration of Independence.

• A founding document.
• colonial legislatures generally at odds with governors appointed by King or corporation. Legislatures had usually had their way. Governors appointed by the king were constantly at odds with colonists. Not so after 1763.

Colonists no longer felt the need for power of British army and navy to defend them against the French and Britain no longer felt the need to coddle colonies by allowing them to not pay taxes to Britain

• Americans appealed to:

• English Constitution - elected representative government
• Idea of natural law and natural rights - a universal standard which all governments should follow and the base of the English constitution.

• Americans became more insistent on local legislation and rule and government by consent of governed.

• but when Britain rejected that, they appealed less to English heritage and more directly to higher natural law.

Declaration:

States terms of government not in terms of universal language of nature and laws of nature.

• Equality

• All men are created equal

• Men means everyone - not a race of white males or property owners
• State Constitutions and their bills of rights are indispensable.

• Particularly Virginia's

Each is equally free and independent - not naturally subordinated to one or another. Independent of all authority and rule by other humans.

Not a product of law or government policy possessed of all men from birth.

• We can agree to be ruled by others - but all alike in this regard. No one can become a slave to another including parents when reach the age of independence.
• Founder James Wilson: when we say all men are crated equal, we mean not to apply this equality to their virtues, their talents, their dispositions, or their acquirements.
• Nor does it mean that all people have equal access to the good things of life

• People do not have a natural right to a minimum wage, health care, education, social security, paid for by society.

• It only means that no one is by nature the ruler of any other person.

• Natural law

• The Declaration says that all men are endowed by their creator with unalienable rights. - L, L, P of H.
• Rights are a claim of how things should be. Not just the fact, but the ought-to-be. The moral implication made explicit.
• If everyone is born free and no one has a right to take that away then everyone as the right to LLPofH.
• Founders: except for the temporary state of childhood, we are all born free and independent of the control of others and deserve to retain that freedom and independence if we choose.
• IN Va Bill of rights two others

• acquiring and possessing property

• just economic order establishes market freedom so that poor can sell their labor to buy property

• free exercise of religion according to one's own conscience.

• These five rights, all sum up what it is that humans have by nature and what they deserve to keep - what they are able to claim for themselves against others.
• These cannot be separated from duty - none of us can make a slave of another

we all have a duty not to steal or murder.

• No nation has the right to rule any other nation for the same reason that no person has the right to rule another without their consent.

What does a government do to secure those rights? This is seldom discussed and must be understood to understand the founder's intent. It was important to the founders.

• with few exceptions, the constitution sets up a Division of labor

• State governments handle domestic policy and federal government handles foreign.
• DOI states that to secure these rights, governments are instituted among men.
• Rights are insecure without government. That state where there is no government was seen as "the state of nature".

Madison - Federalist 51.

• So to secure our rights

• government secures those rights against the threats of other nations. Protects our rights and property by the means of armed forces.
• The preamble of the constitution names the common defense as one of the purposes of the union.

This is the guide to foreign policy to the founders - the sole purpose of foreign policy

• In domestic policy by making and enforcing laws against violence - restraining criminal acts. "its principle purpose" - Jefferson.
• a basis for the separation of powers: Laws must be made - legislative; deciding if an offence has occurred - judiciary; punishment executed - executive.

Govt today has forgotten the purpose of criminal law. Killing in self defense has become routine in Detroit. This is the state of nature and not of living under a just government. gov't more concerned with welfare and political correctness.

• Third duty: establish civil law. Property deeds defined and recorded. Clear legal standards for contract to protect property. personal injury lawsuits to protect people and property. marriage and divorce, duty to children etc.
• Fourth: establish a moral foundation.

Va bill of rights . .

• Fifth: some minimal provision for the poor.

Not explicit but inferable. (This is a stretch. 22:35) In extenuating circumstances govt should provide a safety net. Then contrasted this with modern demand of state of art medical care, housing, food, etc. (but this strikes me as a matter of degree.)

Starvation and destitution unprovided by government violates the terms of the social compact.

• Gov't also secures rights by restraining itself - must be strong to do what it must do.

clear and effective limits on what it can do to prevent it from violating the principles of just govt. Must be constructed in ways that it is less likely to violate rights through excess

• rule of law means that no one is exempt - including congress - but lately not true, notably: civil rights act of 1964, Americans with disabilities act of 1990. Add ACA

• Separation of powers as above makes it more likely that laws are general in nature rather than ad hoc command.

Other restraints listed in state and federal bills of rights.

• Consent of the governed: DOI: governments derive their just powers from the consent of the governed.

• Unanimous consent
• Consent to the form of government
• periodic elections - republican form of government
• un-consent / right to revolution

• Conflict between securing rights and the consent of the government.

• founders put in place devices and policies to prevent the majority from acting tyrannically - future course.

• Republican way of life
• Founders vs. views of modern liberalism