Secular Law Is Progressive, Constitutionally

From Huffpost

By Stephen Herrington

06/12/2010 05:12 am ET | Updated May 25, 2011

Justice John Paul Stevens resigns. Advise and consent begins. The essential math is 5 to 4, 5 of whom seem disinclined to uphold, or at least to defend, the Constitution.

The Constitution is, first and foremost about individual liberty and freedom from oppression. Its goal is to establish and maintain a government that assures liberty and justice. And to whom it entrusts the maintenance of that liberty is not solely the courts, the Congress and the executive. The body to which it entrusts the inexhaustible goal of liberty and justice for all is the people. They, most of all, know when liberty and justice is accomplished for them. They, only, have the power to dissolve the Constitution. They may do so in the belief that it no longer serves them. If they do, it is because they no longer believe in its progressive tenets.

Born out of the Enlightenment, the Constitution derives from the most advanced thought in governance of the period. It was a gamble on the virtue of men, after centuries of denial that a common man had the moral sense to govern even just himself. America was the most progressive nation formed since the crucible of reason at its root in ancient Greece.

The British Crown was conservative and those that resisted throwing off its rule were conservative. Conservatism is, first and foremost, an often cowardly fealty to the known, the mundane, the secure, the past, the vested power. Wealth is conservative, but America is progressive. Even the Federalists, the progenitors of the Republicans, were progressive in arguing “implied powers” against which this modern brand of GOP now regales. Conservatism is profoundly un-American in nature.

Our Constitution was not written to preserve wealth, but to preserve liberty.  He is right about preserving liberty, but forgot freedom.

The bulk of the Constitution, after some housekeeping, is about nothing more than it is about protecting individuals against subjugation by their own government, government of other designs being mostly adopted to ensure subjugation of the populace to wealth and station. Our Constitution’s very existence is intended to prevent oppression of the people by wealth and station. It is conceived to accomplish no other purpose more so than it does that. Were it not, it would be just some other recipe for allocating power among the powerful.

It is individual liberty that it protects. It does not protect monarchs, corporations, churches, races or regional allegiances. It protects the rights of people, with some notable stumbling in the original draft. It has been interpreted for two a and third centuries to confront the powers that would threaten, either economically or physically, individual liberty.

The Constitution is a tyranny of liberty.  But didn’t he say the Constitution was written to preserve liberty?

Tyrants do feel it so. The tyrannies of churches and businesses and racial purists and states rights and even royalties have reeled and rent and gnashed at this enemy of their quests for dominion. There is no more outrageous thing than a democracy, rule by mob. A representative democracy is only slightly less a fiend to them. The people are inherently evil and not to be trusted with self determination. Perhaps we the people are evil, but no more or less so in the balance of history than are popes and kings and CEOs.

But here we are, self determining. Done so for a while now.

It is that in which we find our liberty that we differ as a constituency. For some, liberty means the freedom to dominate. For others, many others, liberty is freedom from domination, regardless of the source. Some fear the government dominating them, taking their private treasures and handing them over to the rabble. Their inclination is to dominate the rabble. The conservatives mistake the intent of our system. It is guaranteed to secure private property as long as the obtaining of it does not injure people or the country. Others fear domination by powers outside of government, a theocracy, a corporatocracy, a class system. Their inclination is to break the teeth of the power that gnaws on them. All such exploitations should be prohibited by properly tended Constitutional law based fundamentally in canon law.

The Constitution, as mission statement, will err little in prescribing a resolution to conservative versus progressive. It will err on the side of individual liberty, private property, security and the welfare of the country, based as it is on the public welfare. If the country does not survive, the Constitution will be proven a failure of the Progressive thought from which it is derived. Their would be kings and potentates as before.

So in selecting a new justice to replace Justice Stevens, all that is necessary is to select a capable and honest person to uphold a Progressive instrument of governance. The Constitution, and therefore law, will always, ultimately be Progressive, or it will cease to be the Constitution. And as no honest and capable jurist would have ruled in favor of Citizens United, imperiling as it does the sustenance of an informed electorate and through so the Constitution, the question foremost on the minds of the Senate must be this; do you find the Citizens United ruling to have been a faulty judgment? The press will, of course, wring their hands over Roe.


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