Academic journal article Humanitas

The Unraveling of American Constitutionalism: From Customary Law to Permanent Innovation

Academic journal article Humanitas

The Unraveling of American Constitutionalism: From Customary Law to Permanent Innovation

Article excerpt

The nearly invariable response of those who are frustrated by court-imposed assaults on America's traditional culture is to propose constitutional amendments crafted to maintain the status quo ante. In 2003, for example, a state court struck down the Massachusetts law defining marriage as between a man and a woman. Activist officials in several other states soon employed the Massachusetts court ruling as an excuse for performing much-publicized, though plainly illegal, ceremonies purporting to join homosexuals in marriage. In reaction, citizens in many parts of the country mounted successful drives to protect, by various means, traditional marriage in their states. Yet the danger remained that the federal courts, and particularly the U.S. Supreme Court, would strike down traditional marriage laws throughout the land in much the same way that the High Court had negated state laws restricting or banning abortions back in 1973. To ward off this possibility supporters of traditional marriage, including President George W. Bush, (1) saw little to be done except to call for a federal constitutional amendment. But success in such a course is doubtful. The Framers, viewing constitutional changes as by and large dangerous to liberty, stacked the odds against adoption, requiring two-thirds majorities of both houses of Congress and ratification by three-fourths of the states. Even if proponents were to get a preservation of marriage amendment approved, it would be, to paraphrase Burke, in truth and in substance, an amendment not made, but prevented. (2) All that would be achieved would be to preserve the Constitution inviolate in this one instance, while doing nothing to counter the host of other illegitimate inversions inflicted on the Constitution every year. Clearly, the amendment process--which was never intended to protect against change and is poorly designed for that purpose--cannot cure the sickness unto death that now besets our federal and state constitutions, of which the current assault on marriage is but one of myriad symptoms.

It could be more plausibly argued that to regain the "free government" that is our birthright, nothing less would suffice than for Americans to defend constitutionalism with the same tenacity as their forebears the colonial whigs, who took up arms against their British rulers when nothing less would preserve their historic rights under the English constitution. But before we can defend the constitutionalism for which our ancestors risked all, we first must understand its specific nature and purpose. Toward that end it is useful to remember that in France, Spain, and other absolute monarchies of continental Europe the law typically was considered to be whatever the ruler said it was. (3) Not so in England. There, as an outgrowth of the medieval Christian teaching that all men, including rulers, are morally flawed, hence in need of restraints, the tradition took hold that even kings were "under God, and under the Law, because the Law makes the king." (4)

Traditional English Law A Creature of Custom, Not Government

Government could be subordinate to the law because English law was not made by government. Rather, the English common law and constitution were seen as emerging slowly over centuries from the "custom and usage" of society as a whole. This respect for custom did not signify passive acceptance of whatever history produced. Rather, it reflected the belief that right order evolved historically, that the good society resulted from proper restraints on man's lower inclinations. Sound custom tended to express and support man's higher nature and to establish a connection between a timeless, higher good and the particular circumstances of man's temporal life. Sound custom was viewed as constituted by a myriad of decisions down the ages intended to further a higher good. (5) "The common law of England," explained the seventeenth-century common lawyer John Davies, "is nothing else but the common law and custom of the realm. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.