Subtitle: The Missing Preamble. In Part I we examined Justice from the standpoint of the Declaration of Independence, and concluded that no law or scotus opinion can be just if it violates Natural Law. Laws and scotus opinions which harm society violate Natural Law, the first of which is self-preservation, and are therefore unjust. Here, in Part II, from the same viewpoint of justice v. social justice, we will inspect the Preamble of our Constitution and scotus corruption of first principles.
In the Preamble, We the People issued a mission statement, the reasons the demos of the United States joined in a governing compact. Civil society informed the world why it was in its interest to band together. Looked at in this way, the Preamble is a statement of ends, and Articles I – VII set forth the means to these ends.
Why civil society formed a new government:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
In broad terms, the duty of scotus (and the other branches as well) is to preserve the civil society through the blessings of justice, tranquility, common defense, and promotion of the general welfare.
Unfortunately, according to scotus, the ends of the Preamble are not enforceable; they do not assign powers to the federal government, nor do they provide specific limitations on government action. Due to the Preamble’s perceived limited nature, no court has ever used it as a decisive factor in case adjudication. Oh, and without saying, due attention to the Preamble would stand athwart the progressives’ goal of social justice, which was described in Part I as the “validation of immediate desires and passions.”
As opposed to scotus, James Madison ascribed in The Federalist #43, the lofty purposes of government “to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”
In The Federalist #51, Madison went further, “Justice is the final goal of government. It is the goal of civil society. It has always and always will be pursued until it is obtained or until liberty is lost in the pursuit.”
In an echo of the Framers’ view of the first duties of government, Justice Joseph Story wrote in his 1833 Commentaries on the Constitution of the United States of America, that the Preamble “is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them.” For example, the preamble declares one object to be, ‘provide for the common defense.’ He went on to explain the obvious, how a nation left defenseless is inconsistent with the intent of the clause.
From identical logic, a scotus opinion that undermines justice, i.e. the Laws of Nature, is not only inconsistent with, but destructive of, the ends of the people’s governing compact. Just as individuals naturally defend themselves from harm, so too does society. Therefore, no scotus derived right, congressional statute, or executive branch regulation may legitimately assault, damage, or undermine the society on which republican government depends.
In common usage today, justice equates with fairness. Can this be the shallow sense of the Framers’ use of the word? No way. Or, is its common usage today more closely associated with passing emotions, and therefore social justice? When progressives attach the “created equal” of the Declaration to the “establish Justice” of the Constitution and let it brew over a hundred years, the result is a dull leveling across society, a degradation of the republican ideal of justice reframed as social justice. Black professor Tom Curry of Texas A&M University went so far as to assert, “In order to be equal, in order to be liberated, some white people may have to die.”
Our Leftist scotus masterfully discarded the Natural Rights theory of our Founding and replaced it with social justice by redefining the concept of rights. Scotus recognizes two categories of rights, those that are fundamental, and those not so important called liberty interests. If this sounds like an arbitrary hierarchy determined by scotus, it is. Unsurprisingly, our progressive scotus doesn’t find the preservation of society, religious freedom, freedom of association, and the right to life as fundamental. They are liberty interests, and as such, they may be violated if the lawmaking body can show a simple rational basis for curtailment.
On the other hand, infringements of fundamental rights (abortion and voting among them) are subject to strict scrutiny, in which defenders of the law must demonstrate a compelling state interest in the law’s curtailment of a fundamental right. It is why state efforts to curtail abortion and vote fraud almost always fall short under strict scrutiny “analysis.”
This slick approach not only avoids the Natural Law basis of our founding and governing compact, it permits a rolling majority of justices to apply their standards, rather than reason and God’s, to the law. It is why Leftists regard the appointment of progressive nominees to scotus as central to the establishment of social justice Utopia. Since the category of rights is up to a majority of the court, it is why senate judiciary hearings quickly degrade into disgusting displays little different from an Animal House food fight. Recall from the Neil Gorsuch hearings how the democrats were appalled at his Scalia-like approach to Constitutional law.
As a so-called fundamental right, what has abortion done to civil society? Abortion rejects our individual natural right to life, and coarsens interpersonal relationships. Society depends in large part on stable families, and abortion harms familial stability. Rather than have children to provide for parents’ old-age care, the government is expected to supplant the ages-old duty of children. America’s native-born population, after 60 million or so deaths, is increasingly incapable of meeting the nation’s economic needs. Witness our nearly open borders to meet labor shortages, and laws to admit technical workers from across the world.
In the Preamble, We the People identified the establishment of justice as an end, a purpose for joining together in a compact of government. Just law comports with Natural Law. First among Natural Laws is self-preservation. Thus, no law or scotus opinion may justly assault the preservation of the civil society of We the People. This the lens through which the law should be viewed and judged, and one which the social justice warriors in government avoid at all cost.
We are the many; our oppressors are the few. Government is the playground of politicians, but the Constitution is ours. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.
Reference: Eidelberg, P. (1968). The Philosophy of the American Constitution. New York: The Free Press.