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e-book European Constitutionalism beyond the State

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How do you rate this item? Reviews must contain at least 12 words about the product. This title is available for institutional purchase via Cambridge Core Cambridge Core offers access to academic eBooks from our world-renowned publishing programme. The point was famously stated by James Madison [] , the principal author of the U. The principal such precaution, of course, is a well-written constitution.

But no constitution is self-executing. It is people who ultimately execute constitutions. In the end, therefore, the issue is cultural, a point I will come back to. After all, they had just fought a war to rid themselves of distant, overbearing government. In drafting the Constitution, therefore, they were not about to impose that kind of government on themselves. In fact, during the ratification debates in the states, there were two main camps — the Anti-Federalists, who thought the proposed Constitution gave the government too much power, and the Federalists, who responded by pointing to the many ways the proposed Constitution would guard against that risk.

The Federalists eventually won, of course, but the point I want to secure is that there was not a socialist in the group! There were limited government people, the Federalists, and even more limited government people, the Anti-Federalists. So under a Constitution that has not changed that much, how did we go from limited to effectively unlimited government? The answer lies in the fundamental shift in the climate of ideas that began with Progressivism at the end of the 19th century, which the New Deal Supreme Court institutionalized in the s.

Together, those documents constitute a legal framework for individual liberty under limited government, however inconsistent with those principles our actual history may have been.


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The problems that have ensued include the ones just noted: less liberty and increasing debt. But perhaps of even greater importance, for eight decades now the Supreme Court has struggled to square its post-New Deal decisions with the text and theory of the Constitution. That amounts to nothing less than a crisis of constitutional legitimacy.

And again, the basic reason for that crisis is the fundamental shift in outlook. Many Americans today no longer think of government as earlier generations did.

I come, then, to the first important point I want to flag. You cannot understand the U. Constitution unless you understand the moral and political theory that stands behind it. And that was outlined not in the Constitution but in the Declaration of Independence Sandefur The Constitution was written in a context, as were the later Civil War Amendments, and that context was one of natural law, Anglo-American common law, and even elements of Roman Law, all of which are captured succinctly in those famous words of the Declaration that I will quote in a moment.

Is it any wonder that there is constitutional confusion in America today when the document that is essential to understanding it plays little or no part in that understanding? Let me now flesh out the argument by focusing on the underlying moral, political, and legal principles at stake, after which I will offer just a few reflections on how those principles might illuminate issues in the European context. Again, I want to show how the shift from limited to effectively unlimited government took place in America, despite very few constitutional changes.

I should note, however, that it will be some time before I get to the Constitution. If a proper understanding of the Constitution requires a proper understanding of the theory behind it, and if that theory is found implicitly in the Declaration, then that should be our initial focus, and will be for some time. That will take us into some of the deeper reaches of moral and political theory, the aim being to better understand the Constitution itself — and especially the broad principles that underpin it.

The first thing to notice about the American constitutional experience is how relatively different its beginnings were from those of many other nations. Constitution making and remaking often take place in the context of a stormy history stretching back centuries, even millennia. By contrast, America was a new nation. We came into being at a precise point in time, with the signing of the Declaration of Independence. To be sure, American patriots had to win our independence on the battlefield.

And before that we had a colonial history of roughly years. But America was created not by a discrete people but by diverse immigrants with unique histories all their own. Let us turn, then, to that new order, as outlined in the Declaration. Penned near the start of our struggle for independence, the Declaration in form is a political document. But were it merely that, it would not have so endured in our national consciousness. Nor would it have inspired countless millions around the world ever since, leading many to leave their homelands to begin life anew under its promise, including millions from Italy who now enrich America.


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It has so inspired because, fundamentally, it is a profound moral statement. We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. The Founders were not moral relativists. They were confident in their claims.

And why not? Notice too the structure of the passage: There are two parts — and the order is crucial.

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The moral vision comes first, defined by equal rights. The political and legal vision comes second, defined by powers, as derived from the moral vision. And right there is the second major point I want to flag: Unlike today, where politics, grounded in will, so often determines what rights we have, for early Americans, morality, grounded in reason, determined our rights.

The Founders were concerned fundamentally with moral and political legitimacy. Rights first, government second, as the means for securing our rights Barnett , Pilon A fuller discussion came much later in the work of Thomas Hobbes and, especially, John Locke — often said to be the philosophical father of America. State-of-nature theory is a thought experiment.

The idea is to show how, without violating any rights, a legitimate government with legitimate powers might arise from a world with no government. Thus, the first step is to show, from pure reason, what rights we would have in such a world. For that, as the Declaration implies, we turn to the natural law tradition — more precisely, the natural rights strain coming from the Reformation and the Enlightenment. There is nothing suspect about that idea, as modern moral skeptics argue.

We appeal to natural law when the positive or actual law is thought to be morally wrong. In America, the abolitionists, the suffragists, and the civil rights marchers all invoked our natural rights in their struggles to overturn unjust law. The origins of this law are in antiquity.

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Many of its particulars are in Roman Law, especially the law of property and contract. Over some years in England, prior to the American Revolution, this law was refined and reduced to positive law by common-law judges consulting reason, custom, and what they knew of Roman Law as they adjudicated cases brought before them by ordinary individuals Corwin : 26; Leoni And John Locke drew largely on that body of common-law rights as he crafted a theory of natural rights, much as Jefferson drew on Locke when he drafted the Declaration.

To correct a common misunderstanding, these are the rights we hold against each other , and would hold in a state of nature. Later, once we create a government, they will serve as rights we hold against that government, and likely be included in a bill of rights. To discover and justify these rights in detail, as I and others have done Pilon ; Epstein , we would need to delve into the complex issues of moral epistemology and legal casuistry, and this is not the occasion for that. What results approximates largely the judge-made common law of property, torts, contracts, and remedies, a law that defines our private relationships, as it did in early America both before and long after the Revolution.

It is a law that says, in essence, that each of us is free to pursue happiness, by his own subjective values, either alone or in association with others, provided we respect the equal objective rights of others to do the same. In short, it is a live-and-let-live law of liberty. There is a fourth rule, however, but it is optional: Do some good. Unlike much continental law, Anglo-American law never compelled strangers to come to the aid of others Ratcliffe It did not because individual liberty is its main object.

And it saw that there is no virtue in forced beneficence. Why have I mentioned this fourth, voluntary rule?