Philosophical underpinnings of constitutionalism as a principle are corrupt

We need to be guided more by the common good, based on the natural law

Contracts, Constitutions, and Outsiders By Morning's Minion

Vox Nova Monday, August 27, 2007

In one of the comments on some thread last week, somebody mentioned the importance of a written constitution, especially as a guarantor of basic human rights. I'm not so sure. My first reaction was to think of Thomas Hobbes, for I believe that the prevailing post-Enlightenment constitutionalism as legal doctrine emanates directly from the thought of Hobbes. It was Hobbes who, more than anybody else, led to the idea of social contracts overtaking the common good as the object of policy. Hobbes did not see humanity as an organic community underpinned by the common good; he saw instead a collection of individuals all seeking mastery over each other (the "war of all against all"), necessitating some form of social contract to keep the peace. Hobbes had in mind an authoritarian form of government, but later thinkers applied the notion that law is all about the importance of contracts to more democratic forms of government.

The notion of a written constitution, although having clear pre-Enlightenment precedents, is very much a child of the Enlightenment. At its very core is the idea that a peaceful, well-ordered society calls for a clear social contract between citizens. And, what precisely, is the problem with that? It is this: its individualist approach means that some can be easily excluded from the contract. What matters is not the all-encompassing common good, but only the rights of those individuals that are subject to the contract. The rest don't matter. Thus in the example of the United States, slavery was deemed perfectly compatible with a written constitution predicated on individual human rights because blacks were deemed as outsiders, not falling under the social contract.

While slavery is in the past, the same problems manifest themselves in different ways today. The social contractarian approach is ideally suited to nationalism, because the foreigner does not benefit fully from the social contract. Japanese-Americans could be interned. Hiroshima and Nagasaki could be bombed. The present administration took the line that foreign nationals could be held indefinitely as "enemy combatants" without trial and without basic rights, and could even be tortured. Note that in this debate, a great deal of emphasis was placed on the fact that most of the abuse took place off US soil (Guantanamo, Abu Ghraib, the Afghanistan prisoners, and the CIA secret sites). The same distinctions are routinely made in the "warrantless" surveillance debate. Implicit (and often explicit) in this analysis is the notion that non-American citizens do not enjoy the basic rights of the written constitution. Sometimes the truth seeps out very clearly. In the infamous Maher Arar case, the lawyer for the US government argued that foreign nationals presenting themselves at the doorstep at the US have at most the right against "gross physical abuse." That's it! So much for the much-lauded Bill of Rights.

Much of the outrage of so-called "illegal immigration" also flows naturally from the social contractarian approach to basic human rights and its designation of insiders and outsiders. How else could massive deportation be so casually invoked as a policy solution? And look at abortion. The main argument used by those on the pro-abortion side of the debate is that the unborn child is not a person enjoying constitutional rights, whereas the mother is. As Catholics who emphasize the dignity of the human person created in the image and likeness of God, this argument is wholly unpersuasive. But for a social contractarian, it makes perfect sense. For there is no class of outsider more marginal, more distant from the debate, more without a voice, than the unborn. How can they be part of the social contract?

So where do we stand? As Pope Benedict says, not everything that comes from the Enlightenment is bad. The constitutional approach to law can sometimes serve a valid purpose as a means to an end, contributing to social harmony. But we must resist the temptation to elevate constitutionalism as a principle, as an end it itself, for its philosophical underpinnings are corrupt. We need to be guided more by the common good, based on the natural law. And that common good encompasses men and women, black and white, Christian and Muslim, American citizen and foreigner, born and unborn... etc. Posted by Morning's Minion at 9:12 AM Labels: Law, Morning's Minion Comments (25) Trackback