John Locke and Supreme Court Rebellion

In his Second Treatise on Government (the first treatise having been a response to Sir Robert Filmer's argument in favor of the divine right of kings) John Locke argues for a liberal state that emphasizes freedom based on his argument that humanity in a state of nature enjoys freedom, and since people do not voluntarily give up that which they enjoy, government is moral only if its institution enhances freedom by protecting life and property. Government ought to protect property because most value comes from labor, labor can be converted into money and money does not spoil, so that property can be enlarged beyond use (paragraphs 45-8). In essence, the most talented can be motivated to expand production and so increase wealth beyond use and therefore society becomes wealthier because of the existence of money and the right to property. Despite two centuries' ideological objections by leveling, socialist, Marxist, pragmatist and deconstructionist academics, and Locke's dependence on a pre-marginalist labor theory of value, Locke's argument was pragmatically correct. Societies that retained the liberal impulse benefited, and as the United States has sacrificed the liberal impulse since the 1910s in favor of European-style social democracy, its wealth and the public's earning power has declined.

A major part of Locke's argument is that there is a right to revolution. He may focus on this because he wrote the Second Treatise at the time of the Whigs' Glorious Revolution of 1688 (it was first published in 1689). Monarchies, Locke argues (paragraph 90) are inconsistent with civil society because civil society is created to establish a mechanism by which conflict among individuals can be resolved peaceably, namely the courts, and if an absolute monarch controls the courts then there can be no civil society to resolve conflict between the monarch and members of the general public, that is, that the public is in a potentially violent state of nature with respect to any absolute monarch:

"Hence it is evident that absolute monarchy, which by some men is counted the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil-government at all: for the end of civil society, being to avoid and remedy those inconveniences of the state of nature, which necessarily follow from every man's being judge in his own case, by setting up a known authority, to which every one of that society may appeal upon any injury received, or controversy that may arise, and which every one of the society ought to obey; where-ever any persons are, who have not such an authority to appeal to, for the decision of any difference between them, there those persons are still in the state of nature; and so is every absolute prince, in respect of those who are under his dominion"

Hence the necessity of an "appeal to heaven" under conditions of abuse by an absolute monarch.

Locke argues that just because we are born under a government, it does not necessarily mean that we are subjects to it. Rather, we become subject to a government by choice (paragraph 116):

"for those, who would persuade us that by being born under any government, we are naturally subjects to it, and have no more any title or pretence to the freedom of the state of nature, have no other reason...to produce for it, but only because our fathers or progenitors passed away their natural liberty, and thereby bound up themselves and their posterity to a perpetual subjection to the government, which they themselves submitted to. It is true that whatever engagements or promises any one has made for himself, he is under the obligation of them, but cannot, by an compact whatsoever, bind his children or posterity: for his son, when a man, being altogether as free as the father, any act of the father can no more give away the liberty of the son, than it can of any body else...

and (paragraph 122):

"But submitting to the laws of any country, living quietly, and enjoying privileges and protection under them, makes not a man a member of that society: this is only a local protection and homage due to and from all those, who, not being in a state of war, come within the territories belonging to any government, to all parts whereof the force of its laws extends. But this no more makes a man a member of that society, a perpetual subject of that common-wealth, than it would make a man subject to another in whose family he found it convenient to abide for some time; though whilst he continued in it, he were obliged to comply with the laws, and submit to the government he found there

Men and women enter into society because in a state of nature they are exposed to the "invasion of others" (paragraph 123):

"for all being kings much as he, every man his equal, and the greater part no strict observers of equity and justices, the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit a condition, which, however, free, is full of fears and continual dangers: and it is not without reason, that he seeks out and is willing to join in society with others, who are already united or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property."

Critical to maintaining civil society is a legislature that does not and cannot exercise arbitrary or absolute (paragraph 135) authority, standing laws and authorized judges (paragraph 136, 137).

The end of government is the good of the community (paragraph 163) and when power is in the hands of a magistrate its purpose must be (paragraph 171):

"to preserve the members of that society in their lives, liberties and possessions; and so cannot be an absolute, arbitrary power over their lives and fortunes, which are as much possible to be preserved...And this power has its original only from compact and agreement, and the mutual consent of those who make up the community."

Obviously, if a society is based upon agreement, then it can be dissolved. Locke argues that Anglo Saxon culture was conservative (and the same is likely true of American culture) so that a right of revolution would be rarely exercised. But (paragraph 212 &214):

"When any one, or more, shall take upon them to make laws, whom the people have not appointed so to do, they make laws without authority which the people are not therefore bound to obey; by which means they come again to be out of subjection, and may constitute to themselves a new legislature, as they think best, being in full liberty to resist the force of those, who without authority would impose any thing upon them. Every one is at the disposure of his own will, when those who had, by the delegation of the society, the declaring of the public will, are excluded from it, and others usurp the place, who have no such authority or delegation...Whoever introduces new laws, not being thereunto authorized by the fundamental appointments of the society, or subverts the old, disowns and overturns the power by which they were made and so sets up a new legislative."

and (paragraph 227):

"when either the legislative is changed, or the legislators act contrary to the end for which they were constituted; those who are guilty are guilty of rebellion; for if any one by force takes away the established legislative of any society, and the laws by them made, pursuant to their trust, he thereby takes away the umpirage which every one had consented to, for a peaceable decision of all their controversies, and a bar to the state of war amongst them. They, who remove, or change the legislative, take away this decisive power, which no body can have, but by the appointment and consent of the people; and so destroying the authority which the people did, and no body else can set up, and introducing a power which the people hat not authorized, they actually introduce a state of war, which is that of force without authority; and thus by removing the legislative established by the society (in whose decisions the people acquiesced and united, as to that of their own will) they untie the knot and expose the people a-new to the state of war. And if those themselves, as has been shewn, can no less esteemed so; when they, who were set up for the protection and preservation of the people, their liberties and properties, shall by force invade and endeavor to take them away..."

Not being knowledgeable about the US Supreme Court, my understanding is that there are two basic views of Constitutional interpretation. One is that the Constitution needs to be interpreted in light of the intentions of the Founding Fathers and that in choosing to reside in America many Americans expressly commit themselves to this compact, and those who do not live here as peaceable strangers for want of a better place. Under this view the Constitution can be amended by two thirds vote of Congress and three fourths vote of the state legislatures or at a convention called by two thirds of the state legislatures and ratification by three fourths of the state legislatures. This model is consistent with Locke's ideas and is likely the way that the Founding Fathers anticipated the Constitution would be changed and the Supreme Court would interpret it. Madison, for example, anticipated problems with the republic as manufacturing grew and the country became larger. If there had been an alternative intent as to how to change the Constitution under such circumstances, it would have been written into the Constitution and the amendment process made easier.

The second model is that the Constitution is a living agreement that the Supreme Court can change. The Supreme Court itself has increasingly relied on this interpretation. For example, in elimination of the death penalty for child molestation this past June the Court relied on multiple extensions of the Constitution to the states and the meaning of "cruel and unusual punishment". This kind of extension may have begun in part for two reasonable purposes: how to adjust the Constitution to the growth of big business and civil rights abuses. These two reasons may have clouded the public consciousness about the role that the Supreme Court ought to be playing.

The Constitution does not provide for, and no one as far as I know has proposed a constitutional amendment to permit, the Supreme Court to legislate changing mores. Rather, this is an unauthorized usurpation of legislative authority. The Supreme Court has arrogated power and can exercise it arbitrarily based on its claim to be a moral interpreter of organic social change. This alone is consistent with the grounds that John Locke describes for revolution. The Supreme Court, in arrogating legislative authority through its one-sided claim to be an organic interpreter exists in a "state of nature" to the general public. No amount of legalistic argument or verbal acrobatics can change that.

But it gets worse. It does not seem likely that the Supreme Court's traditional claim to being a moral interpreter on behalf of society can hold true. The American public has increasingly divided into three camps: a small conservative camp, a small left-wing social democratic and a large moderate camp. The small conservative camp is made of traditionalists and a small number of disgruntled intellectuals. The social democratic camp is made up of university-trained professionals, such as attorneys, university professors, elite investment bankers and feminists. The large center is a more general cross section of American life.

There is little doubt that a disproportionate share of the Supreme Court Justices are Ivy League trained attorneys from elitist backgrounds and so fall into the social democratic camp. Their ideology deviates from the mainstream of America, and so they can no longer claim to fill the role of being a Constitutional interpreter on behalf of changing social norms. The social norms in which the Justices believe are deviant from the mainstream of America.

There needs to be a reassessment of the role that the Supreme Court plays, and the extent to which the "living interpretation" of the Constitution has exceeded its lawful bounds. Just having read the Second Treatise, it seems to me that Locke expressly supports a revolution against the usurpations in which the Supreme Court has already engaged.

Kennedy v. Louisiana and Limiting the Supreme Court's Power

The progressive movement that began in the early twentieth century has followed a gradualist approach to the erosion of liberty. Its left wing makes extreme demands, and then its center argues for moderation, which means less erosion than the left demands. The process repeats so that the extreme demands are achieved through several small steps. As well, the progressives, starting with John Dewey, have been deceitful. They argue that they they idealize democracy and public deliberation, but then they advocate increasing centralization and bureaucratization of power, for instance the accretion of the Supreme Court's power over state law, that stifles democracy. These steps have the effect of restricting the majority of people's freedom, as in the economic realm, or of increasing the power of the progressive elite to impose the cultural values of the wealthy and Ivy League-educated onto the general public.

In Kennedy v. Louisiana, the Court held that a Louisiana law that provided the death penalty for a child rapist is cruel and unusual punishment and so unconstitutional. The New York Sun summarizes the Court's reasoning about cruel and unusual punishment as follows:

'Cruel and unusual punishment,' which is prohibited by the Eighth Amendment, derives its meaning from 'the evolving standards of decency that mark the progress of a maturing society.' These evolved standards, according to Justice Kennedy, require a distinction, 'between intentional first-degree murder on the one hand and non homicide crimes against individual persons, even including child rape, on the other.' Citing precedents, Justice Kennedy claims this distinction shows that the "severity and irrevocability" of child rape cannot be compared to murder 'in terms of moral depravity and of the injury to the person and to the public.'

Kennedy v. Louisiana is a chord in the progressive symphony. In the nineteenth century the Court did not have the power to apply the Bill of Rights to the states. In 1925, near the end of the Progressive era, in the case of Gitlow v. New York the Court ruled that the Fourteenth Amendment extended its power to review state law.

In 1965, in Griswold v. Connecticut, the Supreme Court held that Estelle Griswold, director of planned parenthood of Connecticut and Dr. Buxton of the Yale Medical School could not be fined for giving advice to patients encouraging them to use contraceptives even though the legislature of Connecticut had passed such a law. In the decision Justice Douglas wrote:

"specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen."

Thus, the Court went from not reviewing constitutionality of state law in the nineteenth century to reviewing it in the pre-World War II period and then to creating new rules not in the Constitution ("penumbras") in the post-World War II period that the Court then dictatorially imposed on the states. Paradoxically, Herbert Croly and other progressives of the early twentieth century argued that the Court had too much power in the nineteenth century and that democracy ought to supplant Court authority. Instead, progressivism has seen a vast extension of Court power and restriction of democracy. Despite their deceptive claim to support democracy, progressives have hailed this process. Progressives' values have emphasized extension of the First Amendment to revolutionaries (the speech involved in Gitlow involved Gitlow's advocating overthrow of the government, which New York had illegalized) and birth control. Progressives have repeatedly emphasized results like these over democracy.

In Kennedy v. Louisiana the Court claims the authority to reinterpret the Constitution in light of the evolving standards of decency that mark the progress of a maturing society. Yet, there is nothing in the Constitution that gives the Supreme Court that authority any more than the Constitution suggests that its penumbras have Constitutional force. The Supreme Court has simply re-interpreted the Constitution in a way that arrogates power to itself and that is profoundly anti-democratic. The fact that the "progressive" movement has never complained about this pattern evidences its elitism.

The Supreme Court views itself as an arbiter of decency, yet the Supreme Court has no qualification to function as such an arbiter. In Roe v. Wade the Supreme Court held that states could not illegalize abortion. Yet, according to ABC News, 57 percent of Americans oppose abortion solely to end an unwanted pregnancy. In other words, the majority of Americans do not think that the Supreme Court's judgment is decent. Nor should the Supreme Court imagine that it somehow reflects the moral standards of the majority of Americans. Some justices, schooled in elite universities and indoctrinated in politically correct ideology, have values that deviate sharply from the majority of Americans. If so, then the Court has become an arbitrary possessor of power, a factional dictatorial force that represents the "Blue" half of the country, not an interpreter of the Constitution. Perhaps it is time to restrict this anti-democratic, factional force.

An amendment to the Constitution could limit the Court's power to apply the Constitution to the states. If progressives believe in democracy, then they should favor this proposal, because enhancement of the power of the states would significantly enhance democracy. Such an amendment might state that the Constitution, except where it states to the contrary specifically, does not apply to the states. Then, the states will be free to decide what "penumbras" they wish to adopt, and which Supreme Court penumbras they find morally reprehensible.