Latimer on Law

The True Meaning Of Conservatism In Our Constitutional Democracy

                              The True Meaning Of Conservatism In Our Constitutional Democracy

                                    A Primer In Constitutional Law And Democratic Government

            "Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of law."

                                   -Calvin Coolidge, to the Massachusetts State Senate, January 7, 1914

           "The principles laid down [by Lord Camden in Entick v. Carrington, 19 How.St.Tr. 1029] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property . . . ."

                                  -Justice Wm. O. Douglas, Griswold v. Connecticut, 1965

            There is really only one truly conservative principle for our determinedly secular Constitutional democracy, which is the rule of law under the Constitution of the United States, in keeping with the basic ideals, the governmental structure and processes, and the  individual rights, privileges and immunities mentioned therein. They are as follows:

A.        Basic Constitutional Ideals

            The Preamble to the Constitution of the United States, sets forth the principles of government which it is designed to implement:

"We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and to our Posterity, do ordain and establish this Constitution for the United States of America."

These alone are the basic principles which inform the Constitution itself as an instrument of self-government, and nothing can be considered more conservative than a strict adherence to such principles, or ideals, as opposed to ideologies left or right.

B.        Governmental Structure and Processes

            The first seven Articles of the Constitution then establish the structure of our democratic government, with power distributed among three co-equal branches, the legislative, the executive and the judicial, each having checks and balances on the other.

           (1)        The Congress

           Article I, Sect. 8, gives Congress the right to make our laws, which the President may veto subject to override by a two-thirds majority in both houses of Congress.  When any law has been thus enacted, without veto or by overriding a veto, it is then the President's Constitutional duty, as Expressly stated in Article II, Sect. 3, to "take Care that the Laws be faithfully executed." 

          In Article I, Sect. 8, Congress is given the power to legislate in many areas, always in service of the principles stated in the Preamble, including the power to lay and collect taxes in order to "pay the Debts and provide for the common Defence and general Welfare of the United States," which is to say "We the People" -all of us.  Congress is also given the powers, inter alia, to regulate commerce, establish the rules for bankruptcy, to print money and "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers. . . ," i.e. execution of the laws as written by the Executive.

            In Article I, Sect. 8, Congress is also given the exclusive power "to declare War" which, again must always be solely to provide for our actual "defence" or to promote our general Welfare and to secure to us, "we the people," the "blessings of liberty."

            It is axiomatic that any truly conservative leader, working within our secular democratic government, must always recognize and defer to the Constitutional powers thus expressly granted to Congress, as anything else is pure activism in service of anti-Constitutional ideologies.

            (2)        The President

           The Executive, i.e. the President, must take an oath that he will "preserve, protect and defend the Constitution of the United States," as provided in Article II, Section 1.

           Under Article II, Section 2, the President serves as Commander in Chief of our military forces.  He does not have the power to declare war on his own, because that is the exclusive province of Congress.  He does have the power to make treaties, presumably to end wars, but only with the "Advice and Consent" of the Senate.

           The President has the power of appointment, including the appointment of Supreme Court justices, again subject to the "Advice and Consent" of the Senate.

           Under Article II, Sect. 3, the President is obligated from time to time to give to Congress "the Information of the State of the Union," and thereby to "recommend to their Consideration," not to dictate, "such Measures as he shall judge necessary and expedient."

            Here, it is axiomatic that any truly conservative President, working within our secular democratic government, must always scrupulously perform these functions and, even though it is not expressly stated, we must assume that he always be truthful when giving information to Congress as to the state of the Union. 

            Being truthful in this context, given the gravity of the stakes involved, must necessarily mean not telling Congress something you may only believe or may wish to be true, presented as a matter of proven fact, when you know or should know that you don't actually have proof for such belief.   A truly conservative President can never just manipulate factoids and half-truths to scare Congress into declaring war or to manipulate the people into supporting a war based on mere surmise and innuendo because, again, that is nothing more than activism in service of anti-Constitutional policy.   

         (3)        The Judiciary

           The federal judiciary includes the several District Courts in each state, specialized Courts such as the Bankruptcy Court, the regional Courts of Appeal identified numerically as Circuit Courts and the Supreme Court.  

          Under Article III, the federal judicial power extends to "all Cases, in Law and Equity arising under this Constitution (and) the Laws of the United States."   The 14^th Amendment made it quite clear that the federal law governed all cases between a state and its citizens involving basic Constitutional rights, including equal protection of the laws and due process where laws affect such Constitutional rights.

          The basic law of the United States when the Constitution and the Bill of Rights were ratified was the English Common Law, including the rule stated by Lord Camden in Entick v. Carrington, cited by Justice Douglas in Griswold v. Connecticut.   The Common Law operates on the organic, conservative principle recognized by Calvin Coolidge that:

"Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority.

And this basic, conservative Common Law principle was written into Article III which gives to the Supreme Court the final say on all matters of law and fact arising from "cases" or "controversies" brought to it's attention through appropriate legal process by any aggrieved individual or other entity having standing to complain.

          The more radical approach, as noted by Coolidge, is to "make laws" by legislation. The Constitution itself provides that Congress may do so, but only in service of the principles, or ideals stated in the Preamble, and only insofar as such made laws do not impinge on the basic rights of the people, as existing under the Constitution or under the Common Law in ways that violate Constitutional rights and immunities. 

          In this context, the Supreme Court has the final word on whether any legislation, federal or state, impinges on our Constitutional rights, and this  is a fundamentally conservative view of the Court's proper role in defining, or "discovering" the law under the Constitution.  This is a conservative Constitutional process that reaches back into centuries of the English Common Law which the Founders inherited and retained after winning independence from Britain, as opposed to more radical approach of the Civil Law used in other societies  such as France, Italy, Spain or the Netherlands.

           There is no provision in the Constitution for so-called "signing statements" by which the Executive may put a legal gloss on legislation, or effectively ignore it without a formal veto.  That practice, whether by Republican or Democratic presidents is  anti-Constitutional, as it usurps the proper role of the courts under Article III, with the Supreme Court being the final arbiter on all issues of federal law arising under the Constitution. Again, it is the President's job simply to "take Care that the Laws be faithfully executed," i.e. as written by Congress unless vetoed.

C.        Our Individual Rights, Privileges And Immunities Under The Constitution.

            Our basic Constitutional rights, privileges and immunities are as stated in the first ten Amendments, known collectively as the Bill of Rights.  They include:

            Our First Amendment right of religious freedom, i.e. to be free from religion or   governmental practices based on religion, under the Establishment Clause, in addition to the "free exercise" of religion, to worship any God of our choosing, or not worship any deity at all, in our sole, individual discretion.

            Our First Amendment rights of free speech, of a free press, to peaceably assemble and to petition the Government for redress of grievances.

            Our Second Amendment right to keep and bear arms.

            Our Third Amendment right to deny compulsory quartering of military personnel, except in time of war and only in a manner prescribed by law.

            Our Fourth Amendment right to be secure in our persons, papers houses and effects      against unreasonable governmental intrusion, which may be abridged only by presentation of a warrant issued upon probable cause.

           Our Fifth Amendment rights against capital criminal prosecution except upon indictment by Grand Jury, against double jeopardy and against compelled self-incrimination.  Torture, anyone?

           Our Fifth Amendment right against being deprived of life, liberty or property except through due process of law, and our Fifth Amendment right against the government taking our private property for public use, except upon just compensation, i.e. "socialism" provided that the state pays for your property with, say, tax revenues.

           Our  Sixth Amendment rights to speedy and public trial, trial by jury, to be informed as to the nature of any charges against us, to confront the government's witnesses against us, to use compulsory process to obtain the testimony of witnesses in our     favor, and to the assistance of counsel.

           Our Seventh Amendment right to jury trial in civil matters, according to the rules of  common law, in cases involving any substantial amount of money -originally twenty      dollars.

           Our Eighth Amendment right against excessive bail, excessive fines and cruel and unusual punishments.

           Our Ninth Amendment right to retain all other rights not specifically enumerated in  the first eight Amendments.

These nine Amendments affirm the very specific rights we enjoy as citizens in our secular Constitutional democracy, as well as the fact that we retain other rights previously recognized under the Common Law or which naturally flow from those rights which are specifically enumerated as determined through the Common Law process of deciding cases and controversies in the federal courts.

          The Tenth Amendment applies, specifically, only to powers "not delegated to the United States by the Constitution, nor prohibited  by it to the States," while the  14^th Amendment expressly prohibits the states from infringing upon any of these basic individual rights, i.e. our "privileges and immunities," except only on the  very conservative principles of "due process of law" and "equal protection of the laws."   The 14^th Amendment also delegates to the federal government the power to enforce such provisions.

          Such restrictions, under any truly conservative understanding of how our Constitutional democracy is designed to work, effectively negate the so-called "states rights" demagoguery advanced by right wing Republican ideologues such as Cheney and Limbaugh in their current assault on genuine conservative principles best embodied today by General Colin Powell and other GOP moderates seeking to bring the Republican Party back to the center as today's "loyal opposition" and, perhaps in future, as a responsible majority party that recognizes the proper role of a loyal opposition in working with the majority as President Obama is attempting to do.

          The alternative is for the GOP to continue advancing  its inane "free market"  and "states rights"  ideologies, serving only the economic interests of the corporate capitalist elite while manipulating the prejudices, biases and ignorance of the religious right on so-called "values" issues which serve only as politically divisive wedge issues that make it impossible to attain the Constitutional ideals, as stated in the Preamble, to "form a more perfect Union" or  to "insure domestic Tranquility," as necessary to the effective processes of any truly democratic Constitutional government.

         It is therefore a very sobering thought to realize that last November almost half of the American electorate believed that Sarah Palin, a person who has not even the slightest clue about our Constitutional  history or how our determinedly secular Constitution is designed to work, was qualified to serve in our second-highest Constitutional office only a very weak John McCain heartbeat away from the Presidency.  It is my belief that is what caused Colin Powell to vote against the McCain-Palin ticket as opposed to for Obama simply because of his race as some on the far right allege.

        Based on an informed understanding of our Constitutional democracy, it doesn't matter if you believe in genuine conservative or liberal principles, are a Republican or Democrat, are a man or a woman or are white or black when you contemplate the prospect of a Sarah Palin as president because, with almost fifty percent of our fellow Americans voting for that McCain-Palin ticket,  "if you ain't scared, man, you ain't right."   And today, clearly, Colin Powell is right in his attempt to restore both reason and balance to the Grand Old Party of  Lincoln, Teddy Roosevelt, Calvin Coolidge and Dwight Eisenhower.