The Catholic Thing
What Is a Constitution? Print E-mail
By James V. Schall. S. J.   
Tuesday, 10 July 2012

“Man is a political animal.” This famous affirmation means that eventually, to be what he is, man needed to set up, by his own ingenuity, an interrelated order in which he could bring about, through his own persuasive actions, what he was intended to be. When persuasion was lacking, he sometimes needed coercion. Likewise, since he was free, he could establish regimes that led him away from what he was.

A “constitution” reflected the virtues of the citizens, or lack thereof. Different constitutions fostered the definition of virtue that a particular people practiced. The issue of a “best” constitution arose from this experience of different practical constitutions.

Plato earlier said that words, especially written words, were fleeting. Words could be understood in many ways. Words meant something, but written words were more difficult to pin down. Effort to “preserve” a constitution runs into this difficulty with written words.

A written constitution and an unwritten constitution do not differ in essence. Unwritten constitutions were those in which a people respected earlier decisions, legislation, and decrees. They followed what was set down insofar as what went before was understood.

The American Constitution is unique, a written constitution subject to all the Platonic worries. Though the colonists knew and practiced basic English (unwritten and written) law, their break with England produced an innovation, a written constitution. It put itself between the daily affairs of government and the philosophic principles according to which that government should come to its ruling decisions and laws.

The writers of the Constitution forged a framework of government. It was designed to prevent mis-rule and tyranny as well as to make orderly rule on a wide scale possible. While not neglecting foreign issues, it was primarily designed to prevent internal faction and tyranny. It was designed to define and uphold what was just.

Checks and balances, federalism, enumerated and separation of powers were deliberate. They made things slower in order that rule might be wiser. They were articles of prudence. A law that the people were to obey had to be one duly formulated and passed, step by step, according to the constitution.

           Scene at the Signing of the Constitution of the United States by H.C. Christy (1940)    

A constitution is in essence a promise. It is designed to make the future orderly and just. It is a contract between generations. A constitution cannot work if its definitions and wordings are not clear and intelligible, if they keep changing. Words refer to definite things and ideas. But their original intelligibility is what binds. The theory of a “living constitution” was devised for the most part to avoid the wording of the constitution to achieve something either unknown to it or contradictory to it.

In this context, the controversy whether America was a “modern” founding or an extension of classical and medieval ideas is a crucial one. If it is a modern founding, it has its origins in Hobbes, Locke, and Hume, among others. It is a voluntarist contract whose roots are in the individual’s right to all things for his security and prosperity. If it is a classical or medieval founding, it has a sense of common good and natural or transcendent law. It is aware that government is limited not just by itself or a constitution but by what it is.

The American written constitution was not designed to prevent rule for the good of its citizens. Rather, it was designed to let them alone as much as possible. A few things were specifically set down that government could do. The best thing it could do was to let everyone’s intelligence, incentive, and liberty operate. There were things the government could not do, even if it followed the letter of the constitution. This is why the tradition of natural law has always held any constitution itself to be subject to a higher law.

In the American system, two or three levels of government existed. At all levels the famous principle “that government governs best which governs least” was good advice. The Federal Constitution was one of enumerated powers. The colonists, after the Articles of Confederation, saw the dangers of a weak government. But they did not forget their British experience of a government that governed too much.

Within the mechanism of rule, some designated officials had to be able to pronounce and act when the constitution was being violated, when some governmental instrumentality was not acting properly. Some things, the important ones, were to be left to the people. This whole system was based on the integrity of subsequent officials and, yes, on the stability of words to convey what was and was not “according to the constitution.”

The great shock of the recent Roberts’ decision on Obamacare thus was that the words of the constitution do not bind that official most responsible to uphold the constitution. Hobbes, I think, would approve this decision.

James V. Schall, S.J., a professor at Georgetown University, is one of the most prolific Catholic writers in America. His most recent books are The Mind That Is Catholic and The Modern Age.
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written by Gian, July 09, 2012
This is a very clear article but regrettably truncated just where the discussion of how and why Obamacare violates Natural Law and the Constitution.
And how Justice Roberts decision violates the spirit of the Constitution.
written by Michael Paterson-Seymour, July 10, 2012
As Socrates says, "Writing, Phaedrus, has this strange quality, and is very like painting; for the creatures of painting stand like living beings, but if one asks them a question, they preserve a solemn silence. And so it is with [written] words; you might think they spoke as if they had intelligence, but if you question them, wishing to know about their sayings, they always say only one and the same thing."
written by Grump, July 10, 2012
The Constitution is nothing more than whatever 9 flawed, politically motivated human beings say it is at any given time.
written by Sir Mark, July 10, 2012
Ah, yes, jsmitty, but we were told that it is not a tax. What we have here is taxation without representation by representation that that is not representation... or something like that.
written by Ray Hunkins, July 10, 2012
Bravo Fr. Schall! Would that your instruction on founding Constitutional principles were available to more, especially those who appoint the Judges and Justices but most especially, those who seek appointment. After 44 years as a member of the bar I have concluded that most (not all) judges and justices have no training in judicial philosophy just as most graduates of our colleges and universities have no training in political philosophy and just as most graduates of public high schools have no training in civics.

We are reaping what our educational system has sown. May God have mercy on our great Nation.
written by Athanasius, July 10, 2012
I think the difference between the Obamacare "tax" and others is how it is applied. The basis for beer taxes is a percentage of the purchase price. This basis for mortgage interest tax deduction is a percentage of the interest. The person who does not engage in these activities is left in the same position as he would be whether these taxes or credits existed or not. But the Obamacare "tax" really does act as a penalty because it taxes a specific amount to people who do not purchase health insurance. Further, it is in the part of the act that discusses the mandate, wording it as a penalty. It is not in the revenue section. Therefore, the weakness in the Roberts' ruling is that he has redefined what was legislatively and executively identified as a penalty, and structured as a penalty into a tax, of which no prior tax shares the same structure. Roberts' may have felt that by doing so he was avoiding judicial activism, but he instead increased it. To act with restraint he should have invalidated the law as written, but sent it back to Congress with the advice of how to make it constitutional, i.e., structure it as a real tax. That he did not do so was an abdication of duty. That is the real problem with the ruling.
written by DS, July 10, 2012
Our Constitution, along with our system of government and our entire political history, is grounded neither in absolutes nor polarities. It is based on both classical and modern underpinnings, on compromise and on contradiction. With respect to Chief Justice Roberts, he is by all accounts a conservative and a devout Catholic. Which makes this entire episode quintessentially American.
written by Dave, July 10, 2012
Hmm. All along it was patently clear that as a penalty and not a tax the Patient Protection and Affordable Care Act would not pass Constitutional muster under the Commerce Clause. This was the great worry of the liberals and the great hope of conservatives -- constitutionalists -- that this overreach of an Act, the underlying purpose of which may be shown in Secretary Sebelius' mandate that the Catholic Church and other religious institutions, and even religious believers who own businesses and who oppose the "full spectrum," must provide the full spectrum at no co-pay to their insureds, but that exempts McDonald's and Muslims, would be struck down. Roberts and the Court's liberals declared that the Patient Protection and Affordable Care Act imposed what the Obama Administration and the Democrats in Congress insisted that it did not impose -- a tax -- in order that what they "found," but really invented, in the law, would pass Constitutional muster. In other words, rather than rule upon the law as it is written, in accordance with the Constitution as it is written, the majority ruled upon a "fact" of law that the Administration never averred, in order to give the Administration and the Democratic Party the ouycome they wanted. The Administration is still insisting that the penalty is not a tax -- in defiance of a Supreme Court it does not fear, let alone respect (who could, under these circumstances?) Correct me if I'm wrong here, but doesn't this violate the law of non-contradiction for the purpose of political expediency (what other expediency could have come into play). Fr. Schall and Athanasius have it right.

And this leaves us to shudder as to how a Roberts Court will rule on the suits that will now come forward regarding the violations of religious liberty that the HHS mandates impose. Can the Administration now possibly win against religious institutions, despite stunning losses in the recent pass, that when institutions act in the public square they must surrender what makes them unique and act only as deputies of a constitutionally secular government? One shudders at the now very real possibility, taking into consideration the very real possibility that determining who is and is not a minister is an in-house/private affair, whereas acting in the public arena, whether or not with Federal funds anywhere in the mix, however remotely, is a public act that must be performed in accordance with the dictates of public authority.

I have tried to come around the corner and see good in Chief Justice Roberts' decision, but all I see here is perfidy. God help us all.
written by Chris in Maryland, July 11, 2012
One of the variations of the media narratives is that Ch. Justice Roberts "compromised" with the progressives on the court to stop the commerce clause, and the price he paid in his "compromise" was to keep "Obamacare" alive.

That narrative is not very persuasive, because progressives do not bind themselves to the meaning of words, precedents, etc. Such principles are conservative, and hence not operative for progressives. They will do and say whatever they choos to get what they want - they will say anything, and twist anything, to "justify" what they want - yes will mean no and black will mean white.

Ih he is indeed a conservative, time will soon tell whether the Ch. Justice has indeed snookered the progressives, or whether they snookered him.
written by Ukased in Illinois , July 12, 2012
Fr. Schall's article is very interesting. I would like to pick up where he ended.

My current understanding is as follows:

The Democrats could not have passed ObamaCare had they called the universal mandate a tax. So in the legislative process they called it a penalty.

During arguments before the Supremes, Obama's lawyer (supposedly the People's lawyer!) basically laid out two alternative lines of argument: (1) the mandate is a tax, hence Constitutional under the general welfare clause in Article I, Section 8, Clause 1; and (2) the mandate is a penalty, hence Constitutional under the commerce clause in Article I, Section 8, Clause 3.

As a tax, the mandate doesn't fall under any of the previously approved types and thus line (1) is suspect, even apart from the substantial preliminary issue of the tax not yet ever having been collected, which the Court waved aside. As a penalty, for Roberts the mandate pushes the commerce clause so far as not to admit any limiting principle, so he would not join the four liberal justices in accepting line (2).

In his opinion, Roberts included words to the effect that he joined with the four dissenters in finding the mandate exceeds the bounds (whatever they may be) of the commerce clause. However, that seeming 5 to 4 majority placing a new limit on the commerce clause going forward, has no precedental force, since it was not couched within the magic phraseology "it is the opinion of the Court that…"

Overall, the prevailing five justices were willing to disregard the clear record of legislative intent in order to consider (1) as well as (2). They did this even though by accepting line (1) Roberts in effect rewrote the law from the bench in order to rationalize its approval and, moreover, thereby foisted upon Americans a breathtakingly sweeping law passed through legislative chicanery, vote corruption, and fraudulent packaging. Roberts weaseled out of the rewriting of law complaint by falling back on the slenderest of reeds: invoking some wussy court principle that, if there is any non-absurd way to reinterpret a law which will permit the Court not to overturn it, then do so.

Thus, we citizens are left by Roberts and the four liberal justices to deal as best we can with a legal monstrosity, one which was: fraudulently packaged for the public; kept fundamentally secret from both the public and many legislators during the legislative process; passed using procedural chicanery and corrupt vote buying; signed by Obama; and, finally, approved by the Judicial Branch via a mystifying, hash of an opinion written by one person.

I feel Roberts let America down, for reasons we'll probably never understand or even know. He effectively washed the Court's hands of the hot potato called ObamaCare and tossed it back into the laps of the American voters.

The lesson I draw from this thoroughly unsavory story is that we concerned citizens can no longer trust the system, or even most of our elected representatives, to do right by us and our country. We must become engaged even more in our political process to make our voices heard more effectively, monitor performance of officials closely, and then rigorously hold them accountable.

I believe America is now at a perilous junction. I am also grudgingly coming 'round to the view that people get the government they deserve. If we feel we deserve better than we've been getting, then it's up to all of us to get off our sofas and become engaged. A little passion wouldn't hurt, either. And very soon.
written by Jared, July 12, 2012
Perhaps Father can pick up next week where he left off on this article; namely, how Hobbes would be proud of Roberts’ decision.
written by Tony Esolen, July 13, 2012
The tax, I think, is best viewed as a poll tax: a tax for wearing your head on your shoulders; with certain people given a waiver, for having done what the Protector wants done.
written by Louise, July 14, 2012
@Tony Esolen
...or for agreeing not to use their heads, perhaps?
written by emily, September 26, 2012
hello world.
written by Renan, November 09, 2012
Legal né, faze o q?

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