‘The Federalist Papers’ and Contemporary Political Challenges

Monday, June 8, 2009 \AM\.\Mon\.

American Political Theory and Constitutional Law Series, Pt. I

The American people have a history of distrust and suspicion of centralized authority. The original framework for the primitive independent-America outlined in the Articles of Confederation was not weak by accident. Even despite the clear insufficiency of the-then government under the Articles, the framers of the Constitution still found their vision of government to be a hard sell. It is fair to say their success was in finding an effective mix between the Athenian assembly and Roman Senate combined with ‘checks and balance’ with two other branches of government—a republic instead of a direct democracy.

In many ways, this debate has lived on. It is remarkable, particularly in recent decades, how many constitutional amendments have been given real and serious consideration by the U.S. Congress, from balanced budgets, to flag desecration, to super-majorities for taxes,  to line-item veto just begin the list in attempts to reshape the constitutional order.

For some time I have had mixed and often conflicting beliefs about this whole debate. The usual “left” versus “right” spin is, as usual, tiring. Though, I have re-engaged the matter due largely to a new found interest in the project development of Catholic legal theory. Such an undertaking on the part of Catholic law professors and legal professionals have been enormously helpful in the process of asking serious questions and finding an authentic Catholic answer to crucial questions about American government, constitutional law, and jurisprudence. This couldn’t be more true than with my quarrels with the “living Constitution theory” as well as “originalism.” Though it is probably still the case, to some degree, that I am troubled about answers to these questions. I have become more convinced by those who make the case (in regard to one matter) that America needs a much needed reminder: constitutional amendments should be rare and limited to issues of historic significance. The U.S. Constitution must be preserved from short-term and sudden passions. The starting point, I think, is to reiterate, as the Founding Fathers did, the merits of representation, deliberation, and conciliation.

American voters in great number say they favor change, but there is no consensus or clarity about neither the amount nor direction such change should take. Not so surprisingly, contemporary political debates do very little to educate the public about essential constitutional issues. Serious discussion is not only past due, but is vital. What is a greater threat to constitutional government than a lack of substantive public debate and public awareness? An uninformed, ignorant public is perilous to the common good and constitutional order.

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Proposal: The Fair Fight Initiative

Thursday, December 4, 2008 \PM\.\Thu\.

As is observed every time we discuss Supreme Court appointments, there is very little pro-life progress possible under the Roe v. Wade regime, because anything which is seen as unduly obstructing a woman’s access to terminate her pregnancy (and thus use her constitutional right to “privacy”) is struck down by the courts. And yet, while abortion on demand is decidedly not popular according to the polls, Roe v. Wade mysteriously is. A solid majority of people way they want to keep Roe v. Wade, despite the fact that a solid majority would also be in favor of legal restrictions on abortion well in excess of what Roe allows.

It seems to me that one of the most difficult tasks for the pro-life movement is thus not to convince the population that abortion should be seriously restricted and reduced (banning would right now be a very hard sell, but it would seem that a great deal of progress in that direction would be possible) but rather to convince citizens that Roe is actually an obstacle to this. Thus, “the fair fight initiative”. The purpose would be (and the lawyers on here can inform me if this is indeed a legal possibility) for Congress to pass a law which would officially remove from the federal government (legislature and courts) any ability to restrict or allow abortion.

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Federalist vs. Pro-Life

Thursday, October 16, 2008 \PM\.\Thu\.

The quixotically named Catholic blogger Morning’s Minion has a post this morning in which he (yet again) tries to make the case that the pro-life issue is basically a wash between Senators Obama and McCain. Now, I know that many of our readers already agree that MM’s conclusion is wrong, and deeply wrong, but I want to focus on why this particular argument is wrong, because I think it’s an important question for Catholics living in our republic. So I’d like to ask that people avoid basic “I don’t see how any good Catholic could vote for Obama” comments in favor of discussing whether federalism can be a pro-life position, or is simply a passing of the buck.

MM says:

Basically, neither candidate can be called “pro-life”….
OK, abortion. The starkest difference here is not related to the need to grant legal protection to the unborn child. No, the candidates instead indulged in a quaint little constitutional debate. Obama: “the constitution has a right to privacy in it that shouldn’t be subject to state referendum”. McCain: “I think decisions should rest in the hands of the states. I’m a federalist”. Sorry, but neither position qualifies as pro-life. It is a debate about which level of government has the right to strip legal protection from the unborn child…

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