Saturday, March 23, 2013

"Rights", Religion, and Congress: Not the Courts(!)

Long-ish but significant essay here on the Founders' understanding of "rights" and "justice" as explicated by Willmoore Kendall.  Wherein John Alvis demonstrates that the Founders (and their immediate predecessors) would not look kindly on Marshall's revolution (Marbury), the rise of the Managerial Class in government, nor the current Unitary Executive abomination.  He also 'splains that Ron Reagan wussed out.  Take that, Limbaugh/Levin.

Bits and pieces:

Kendall undertook to examine the founding documents of the nation—The Declaration, Constitution, Bill of Rights—in the light of political developments native to America. This native tradition for the most part antedated John Locke or could be considered apart from Lockean influence. Kendall went back to the Mayflower Compact, The General Orders of Connecticut and the Massachusetts Body of Liberties in order to locate the ideas—he called them “symbols”—which would carry forward to the Virginia Declaration of Rights, the Declaration of Independence and the Constitution.[1] Kendall constantly emphasized the non-Lockean character of this tradition insisting against the prevailing contemporary view that America’s first principles derive not from European contractarian theory but from the country’s indigenous experience because he had concluded that the form of government developed out of this experience rectified what was faulty in contract theory.

Briefly put, the problem with Locke's contractarianism was the reconciliation of "justice" with "majority rule."

[Thus, m]ajority rule in America looked to a standard beyond the mere expression of a majority will, and that standard was the law of God as the divine law could be known through the Judaeo-Christian tradition.

...One observes that this religious aim was dispersed throughout the colonies north and south, Puritan or Cavalier, and one can show that promoting Christianity continued to be a chief purpose espoused by Americans down through the Virginia Declaration of Rights of 1776. The last mentioned document declares that all those bound by its provisions have a mutual duty “to practice Christian forbearance, love, and charity, towards each other.” From such statements pointing to a continuity of religious belief from the first settlement to the Revolution, Kendall concluded that the American political tradition conceived the right to free exercise of religion as correlative to the duty to worship God. Persisting beyond the New England congregational theocracies this understanding of civil society’s reliance upon religious foundations carries forward to the Northwest Ordinance with its statement that “Religion, morality, and knowledge [are] necessary to good government and the happiness of mankind

That red-highlight in the above becomes very important, indeed, in the discussion of "rights."

...Religious belief provided access to a higher moral law, access to principles of natural right which could not be grasped so readily or so broadly by an entire populace outside the frame of scripture or without the authority of churchmen. The foundation of that moral law is the principle just glanced at in respect to right to worship, namely, rights are always understood as correlative to duties. Duties are prior, rights derivative. Without duty no right; whenever a right is asserted it is asserted on behalf of some duty. Hence the Bill of Rights of the Massachusetts Constitution lays it down “It is the right as well as the duty of all men in society, publicly and at stated seasons, to worship the Supreme Being the Great Creator and Preserver of the universe.” In that same state constitution, moreover, we read that no citizen shall be hindered in worship “provided he doth not disturb the public peace, or obstruct others in their religious worship.” In other words, the freedom of religious worship, although based on nature, nevertheless admits of those limitations necessary to harmonize its exercise with other ends of civil society, here the public peace and the liberty of others.

...the limits placed upon one liberty with a view to protecting others points to the necessity for constant deliberation upon the scope and exercise of rights and, hence, raises the issue what is the appropriate governmental body for such deliberation. The answer to this question is the considered will of the community determined by its representatives in a deliberative assembly—the congregation in the earliest colonial experience, thereafter the colonial and state legislatures, thereafter Congress, or the state legislatures as adjustors of rights withdrawn from Congressional action under the first ten amendments. One can see incidentally that Kendall found in the pre-1787 tradition an anticipation and confirmation of the argument the Federalist Papers directs against charters of inviolable rights. Since rights depend not in their origin, perhaps, but in their scope, upon situation and circumstance, the business of lawmaking ordinarily and continuously turns out to be defining, adjusting and harmonizing claims to rights

In other words, the primary "adjudicator" of rights is Congress (or the legislatures), not the Courts--an understanding NOT taught in law schools, nor favored by the Progressive Termites who utilize the courts and/or the Executive to do their bidding.

...The virtuous people under God arrange public policy by having delegates who represent the people at their best conduct deliberation under certain procedures intended to perfect discussion. What were Kendall’s grounds for asserting Congressional supremacy? Today as we witness a new kind of contest among the coordinate branches of the government—a contest over control of the bureaucracy—we may discover standards for assessing the conduct of Congress in Kendall’s teaching on deliberation and its responsibilities.

Equally from historical and constitutional considerations Kendall maintained that American tradition prescribes legislative supremacy. The historical evidence turns on two developments: first the assigning of the responsibility for determining rights to the assembly rather than, say, to courts in all the colonial frames of government; second, the clear subordination of the Governors to their legislative counterparts in all of the early state constitutions. Despite Federalist imprecations against irresponsible popular legislatures, the Philadelphia Convention reaffirmed legislative superiority. Both judicial and executive subordination to Congress were secured by provisions of the Constitution of 1787, and because in a regime of laws all measures of public policy must take the form of regularly enacted statutes, the lawmaking body will take precedence over the executing and judging bodies...

Betcha never heard THAT in Civics 101--or 201, or 301, or 401.  Hmmmmm?

...What justifies this ascendancy of Congress over the Executive and Judiciary? Solely the fact that Congress is the body wherein the best deliberation takes place. The discussion process answers the dilemma of majoritarianism which Kendall had confronted in Locke. That is to say, the best protection for the liberties of individuals and minorities is to be found in the way Congressional majorities come about in the first place, and then in the way such majorities must conduct themselves in order to get legislation through the two chambers of the legislature. With respect to the formation of Congressional majorities through elections Kendall, following Madison, stressed impediments to the rise of unjust popular movements, i.e., bicameralism, staggered Senate elections, a far-flung and diverse electorate. Beyond these institutional considerations, however, he observed an important cause of moderation not anticipated by the Federalist argument: the internal regulation and customs of the two houses, especially the committee system, seniority, the filibuster and the unwritten but highly effective code of Senatorial deference—the clubishness of Senators.

Our hero, the Filibuster!!

Having said that, our essayist speculates that Kendall would be dismayed over Congress.

...Today a new outlook upon the nature of lawmaking accompanied by changes in the daily business of Congressmen raise doubts of Congress’s credentials as a deliberative body.

Doubts arise on the grounds of what Congress does not do and on the grounds of what, more and more, Congress does. What it does not do is deliberate upon the pressing moral issues of our day
....The difficulty is not that these matters have gotten decided in a leftward manner but rather that they have not been deliberated at all by those whom the system charges with the responsibility for deliberation. One cannot name a Congressional debate on an issue of large moral consequence since the Civil Rights legislation of the mid 1960s. The Watergate orgy was no exception for several reasons, not the least of which was that it was not a debate over a law, a public policy. It seems fair to say Congress has come to prefer other means of doing business to the one means proper to parliamentary bodies: full and free debate addressed to principles. Right, wrong, or indifferent, prudent, extravagant, or timid, Congress is, at all events, reluctant to air principles...

IMHO, that applies particularly to the Republicans (but not the TeaParty folks.)

The result?

Before considering the cause of that abdication let us note its effect: the Court fills the vacuum left by Congress or, worse still, quasi-independent regulatory agencies. Most of the issues set down just now as proper subjects for principled deliberation in Congress have been left to the Courts, as though Congressmen had come to believe only the Courts worthy of deciding matters on grounds of principle.

Let us put it plainly:  Congressmen have no balls.  So instead of worrying about such silliness as "principles," they retaliated in kind:

...It was said that the business of modern government was beyond the scope and competence of Congress, that only managerial expertise could cope with modern needs, and that the only organs capable of these complexities were agencies stocked with experts. Kendall disputed such claims saying that Congress need only decide the principles which would regulate the regulators and this, Kendall maintained, Congress was well-equipped to do. Congressmen, however, had other ideas. They responded to the challenges of managerialists by becoming themselves managers, surrounding themselves with enormous staffs and setting up subcommittees with their particular staffs to shadow the various regulatory agencies of the executive. This shadowing now seems to have become the chief business of Congress....

...They are brokering, canvassing, scrutinizing and poking about among executive agencies while struggling to keep together, improve, and, no doubt, enlarge, their own groups of experts which are their tools for the activities first mentioned. Congress does not deliberate because congressmen are preoccupied with other, more direct, more profitable, less risky and less open methods of rule. Congress is administering rather than governing. Legislative agents and executive personnel are having their functions intermix, and the trouble with their so doing is that responsibility grows confused. More troubling, as congressmen grow fonder of administering, they will more and more neglect the work for which we sent them to Washington. Government by more or less secret, more or less unaccountable, committees and staffers is not what we had the right to expect....

The indictment does cover all of the Congresscritters, by the way:

 ...Do Congressmen today conceive themselves to be men and women selected for their virtue and charged with responsibility to deliberate? If they subscribe to the currently fashionable debauch of the parliamentary ethos known as “interest-group liberalism” they will consider themselves rather the spokesmen for partisan interests, obliged only to replicate desires of constituents or at most to broker their constituents’ interest among 534 other similarly motivated brokers. I should stress that what Kendall meant by the virtue he imputed to the representatives of local communities was something not greatly exalted but nonetheless crucial to constitutional government: namely the ability to conceive and the will to conduct deliberation as a rational process aimed at justice. But if deliberation is no longer so conceived and so practiced but instead Congress has come to think of its business as the mere agitation of interests, then not reason but mere will must stand behind public law.

Nietzsche unbound.

As to Reagan:

...From the outset the Reagan administration shrinked from asserting itself. While he still had the Senate the President did little to promote legislation directed against affirmative action, abortion, homosexuality. Talk against affimative action proved cheap when it became clear Reagan would not, or could not, clear out bureaucrats responsible for continuing affirmative action regulations. One has the impression Reagan was habitully talked out of risking all-out confrontations in Congress. He and his advisors seem to have been reluctant to force the issue at the level of lawmaking. Consistent with the executive timidity of the first term and fully as demoralizing to supporters who had hoped for new principles was the breakdown of presidential leadership in the Congressional elections of 1986. Reagan’s one chance, to say nothing of his duty to his office, was to see to it that he do all in his power to persuade the public that in these elections everything was at issue that had been at issue in the last two presidential elections. It was his responsibility to elevate to the level of principle the differences among candidates for seats in the House and Senate and to make the vote a choice between his policies on all fronts and those of his opponents on all fronts. Large moral issues, domestic and foreign, lay at hand to be seized as levers upon the mass of public opinion, levers to be used by a President who grasped the need to revive traditional understandings of liberty and equality and to combat recent perversion of those founding ideals. Yet instead of striving to make the elections more general in their significance, Reagan took the opposite course. In 1986 Reagan appeared intent upon holding aloof so the better, presumably, to preserve his personal popularity. He guarded his popularity at the expense of those political principles which had been, one would hope, the cause of his popularity....

Nancy, folks.

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