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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law

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Habits of thought and assumptions born of media rhetoric blind many Americans to our full constitution. Most habitually just assume a certain role for the 1788 text, without further reflection. More clear-eyed scrutiny of that text's role begins with contemplating the reasons for following texts in general.

  The Authority of Constitutional Text Comes from the People, Not the Text

Justification for assigning authority to a text cannot be merely a command to follow from the text itself--not even a command from a text claiming to be religious revelation or a country's constitution. Otherwise, Christians would also follow the Koran; every religious person would follow it, the Torah, New Testament, and other religious tracts claiming self-authentication. And for a constitution, Americans might still follow our Articles of Confederation.

Hence, reasons for following a text typically lie outside the text itself. And such external reasons influence not only why we read texts but also how to read them and whether also to look to other texts or sources.

We understand how a personal faith, outside text, leads believers to find religious significance in particular texts--a faith perhaps blending internally-felt divine inspiration with trust in one's family or social group's embrace of the text, independent learning, or desire for mental peace. That faith not only determines which texts are sacred but affects the strictness with which a text is understood.

In each nation, something like a faith--a politically-conjoining, collective assent by the living citizenry--is what justifies which texts or other sources comprise the foundation of law and government, what reveals the nation's present constitution. Though vague, that collective faith provides the "standard" (rule, principle, process) by which the people recognize what constitutes their nation in a political and legal sense. The American "constitutional standard" convinces us that our constitution still includes the 1788 document. True, many Americans do not consider the reason but simply follow a parent, teacher, or pundit who calls that text "The Constitution." But even if we seldom ponder our constitutional standard, on reflection, Americans appreciate that more than an authority figure's bare assertion must justify turning to a particular document.

Though additional details of America's constitutional standard are debatable, we do agree on the principle at its core: our varying ideas of what makes law and government legitimate all concur that (i) the peoples' democratic will and (ii) the individual's inalienable rights are co-requirements for our constitution. Those two requirements make the 1788 Constitution the central component of--but not the entirety of--the American constitution today.

Parts II and III, below, elaborate historical reasons why popular sovereignty has made some precedent also part of our constitution; but the inalienability of certain rights is another, simpler reason the 1788 Constitution cannot have been exclusive, from its very inception:

  Our Inalienable Rights Are Not Limited by Text

              inalienable    Not transferable to another or capable of being repudiated.

Even "constitutional conservatives" want rights beyond text. In addition to the 1788 document, they embrace our 1776 Declaration of Independence and its principle of "[i]nalienable rights." ("Unalienable," in official Declaration copies, meant what Jefferson's draft called and we now call "inalienable.") But in alienable rights cannot have been alienated (given up, taken away) by political majorities' failure to vote them into a later document like the 1788 text or Bill of Rights. And majorities cannot be relied upon to adopt or amend constitutions to protect the very minority rights they infringe. Thus, some rights against government--constitutional rights--reside outside the 1788 Constitution's text, as the Ninth Amendment emphasizes: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

And even conservative justices embrace unenumerated rights, evident in the 2010 holding that a federal constitutional right of gun owners limited the power of states to regulate guns. Unable to rely on the "right to bear arms" protection of the Second Amendment, which limits only the federal government, McDonald's majority needed to go beyond constitutional text to find specific meaning of general text for the Fourteenth Amendment's very general limits on states.

That is, the Bill of Rights--beginning with "Congress shall make no law"--was originally intended, and has always been read, to impose restrictions only on the federal government, not states (which the Court documented in 1833). With a few exceptions, such as the prohibition of ex post facto laws, the 1788 Constitution generally did not restrict the states in dealing with their inhabitants until the post-Civil-War amendments, the Thirteenth through Fifteenth. The most-comprehensive of those, the Fourteenth Amendment, limits states in terms much less particular than the Second Amendment or most other Bill of Rights provisions. The Fourteenth Amendment expressly prohibits states' only from denying "privileges or immunities," "equal protection," or "life, liberty, or property without due process of law." Thus forced to look outside text for the specifics of what those general concepts mean, the Court's conservatives found in history and tradition a fundamental constitutional right to possess guns, a liberty states could not deny.

Accepting that some inalienable rights must be identified through sources beyond original constitutional text changes the tone of the debate, but not necessarily the outcomes--rational grounds for conservative skepticism remain:

Liberal Stereotype:  Abortion restrictions violate constitutional rights.

Conservative:  Granted there are some unenumerated (extra-textual) rights, but declaring a right to control procreation displays too much discretion by unaccountable judges. 

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Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.
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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law

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Most constitutional scholars, constitutional law p... by Darren Latham on Thursday, Jun 13, 2013 at 9:23:44 AM
of the U.S. and you'll see that the Constitution i... by Daniel Geery on Thursday, Jun 13, 2013 at 1:06:06 PM
Any legal system which fails to accord rights to t... by Vietnam Vet on Thursday, Jun 13, 2013 at 5:52:07 PM
I agree with much of this post. On the second poin... by Darren Latham on Sunday, Jun 16, 2013 at 11:54:42 PM
It is the spirit, not the text that counts. And ev... by BFalcon on Thursday, Jun 13, 2013 at 6:02:44 PM
I couldn't agree more. This is a well written, tho... by Opacus Black on Thursday, Jun 13, 2013 at 7:39:29 PM