Saturday, August 30, 2008

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 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.

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