Lex Facit Regem?

Heh. A little Latin to start your day...and a description of The End of Democracy, from First Things blog.

In Civilizing Authority, Budziszewski quotes Henry de Bracton, the thirteenth-century English jurist who declared, Lex facit Regem—the law makes the king, not the king the law. The king is supreme within the system but not over the system.

As did the First Things symposium, Budziszewski cites numerous instances of this strange dynamic at work. Constitutionalism, says Budziszewski, is “the principle that the real authority of government depends not on the personality of the rulers but on antecedent principles of right.” [Conversely,] Brutus wrote that, in the proposed Constitution, “These principles, whatever they may be, when they become fixed, by a course of [judicial] decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers.” Which, of course, is precisely what has happened. The principles of right are no longer antecedent but are devised by the courts.

This was most overtly, one might say flagrantly, asserted by the Supreme Court in the 1992 decision, Planned Parenthood v. Casey. The Court composed what Budziszewski calls a “confession of faith”: At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. That is heavy-duty philosophy coming from a committee of lawyers.

Budziszewski writes: “To understand this creedal statement one must recall what occasioned it. What the Court meant by defining one’s own concept of human life was not so much deciding what to think, but deciding what to do: Because I have liberty to define my own concept of life, I may kill. In strict logic, it would seem to follow that I may kill anyone. In fact, it would seem to follow that I may do anything whatsoever. For the time being, the Court restricts its universal permission to the taking of life not yet born. This serves as a salutary reminder of what may be called the first principle of judicial usurpation: Formulae of universal permission never really mean universal permission; they are always instruments for the transfer of the power to prohibit from one set of hands to another. That king who says ‘Everything is permitted’ will always add, ‘But I decide for everyone what “everything” includes.’”

Were it just the Courts! Here in Wisconsin, the Legislators of AB377 wish to do violence to the same 'principles of right' by redefining "when life begins" by fiat. Strictly speaking, they may do so under the principle enunciated by Kennedy in the Casey decision, of course.

...That king who says ‘Everything is permitted’ will always add, ‘But I decide for everyone what “everything” includes.’”

And in Casey the Court did not neglect to make the last point unmistakably clear:

The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States, and specifically upon this Court . . . The Court’s power lies in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means, and to declare what it demands.

And what the law means is that anybody who disagrees with the Court should shut up

I’m not at all sure, however, that this demonstrates, as Budziszewski would have it, that this is an instance of the Constitution undermining constitutionalism. It is not that unless one believes, with the 1992 majority of the Supreme Court, that the Constitution is whatever the Supreme Court says it is.

...all of which is to lend urgency to both examining the Presidential candidates, and then voting.

Remember: there's only ONE actual Federalist running...