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.This more expansive approach canbe taken regardless of whether a political community relies more uponnatural law, divine law, or popular sovereignty as a basis for itslegislative judgments.What differs is the basis for determining whatbehaviors are considered to be good for its citizens.The distinction between these two categories of moral legislationwill be at the heart of this chapter.In order to better understand theearly American constitutions approach to moral legislation, the topicsof civil law and political power will be discussed as an introduction tothe analysis of the state constitutions.The issue of legitimate use ofpolitical power and the role and making of law is obviously of centralimportance to the question of legislation of morality, as the aboveparagraphs demonstrate.In addition, since law making is intended toserve the interest of the community for all the early American states,the issue of popular sovereignty will be taken up to discuss the variousviews of popular sovereignty held by early Americans.CIVIL LAW & POLITICAL POWERAs discussed in the last chapter, many of the early Americanconstitutions articulate a belief in, and commitment to, individual The Constitutionality of Moral Legislation 131natural rights.If such rights are grounded in the nature of humanbeings and recognized by a regime, why is there a need for civil law?The answer for the early Americans comes out of their view of humannature.There is a tendency for human beings to violate the naturalrights of others when seeking to enjoy one s own natural rights.Thus,civil law is understood to provide necessary limits on individual libertyto safeguard against violations of natural rights.For example, whenone person prepares to reap a harvest of grain after plowing and sowinghis or her field, others have a propensity to take the grain forthemselves if they are stronger since doing so is easier than plowingand sowing for themselves.It is because of this propensity of humanbeings to infringe on the rights of others that the need for civil lawarises.Civil law consists of clearly established rules for the communitythat are applicable to all.Civil law is in contrast to giving one person orgroup the power to make arbitrary judgments whenever disputes arise.Consistent with their strong commitment to equality, civil law for theAmericans must be enforced without preference for any individual orgroups so that each individual s rights are protected.Civil law, of course, is not self-enforcing.There must be humanagency to execute the laws established.In order for government tofulfill its function of protecting citizens from having their rightsviolated by other citizens or foreigners, it must have sufficient power todeter or punish violations of the laws.The problem with politicalpower, however, is that it is a two-edged sword.Political power can beused to legitimately punish those who violate the rights of theircitizens.However, it can also be used illegitimately when governmentofficials use their political power to violate the rights of fellow citizens.For this reason, Americans attempt to dull the sharpness of the latterside of the blade in order to hinder government from illegitimatelyusing political power.The potential for government officials abuse oftheir power is just as real as the potential for individuals to use theirresources to violate others rights for personal gain.The goal for earlyAmericans is to hinder the use of political power for illegitimate ends,while entrusting government with ample force to legitimately deter andpunish violators of rights.The means to this end are multitudinous inthe state constitutions, including separation of powers, fixed terms ofoffice, and free elections.Many of the methods constructed to restrict governmental powerfrom being used illegitimately are associated with the process of Faith, Reason, and Consent132making good laws.They are attempts to influence the law makingprocess so that good laws are enacted.Obviously, good laws cannotcompletely solve the problem.Good laws cannot completely stop agovernment official from using the power vested in him or her tooppress citizens.If you give a police officer a gun, you run the risk ofthat officer unjustly killing a citizen.Good laws, however, provideclear rules defining what citizens and public servants can and cannot doto other citizens.They define legitimate versus illegitimate use ofpolitical power.Good laws define acceptable and unacceptablebehavior for both the private citizen as well as the public official, andspell out the implications for overstepping those laws.The questionthat this chapter will address is the extent to which the stateconstitutions authorize their governments to regulate moral behavior.Do they support a more restricted approach to the legislation ofmorality or a more expansive role?The American states attempt to structure political power in such away as to construct a regime which makes good laws, executes themwell, and judges justly when disputes about interpretation of law arise.Separation of powers, for example, is an attempt to distance the law-making function from the executive function so that the persons whowield the political sword are not the same persons who make the rulesfor how and when the sword can be used.If the role of making law andthe power to execute it are placed in the same political office or body,the potential increases for laws being enacted that (1) are preferentialtoward the ruling group and (2) are in conflict with the principles ofnatural rights.Separation of powers, therefore, is a device whosefunction is to limit the use of political power in a manner that protectscitizens rights from violation by government.POPULAR SOVEREIGNTYNo person has a natural right to rule politically this much is veryclear to the early Americans.Popular sovereignty means that all theinhabitants of the political community collectively retain ultimatesovereignty within the regime.The principle of popular sovereignty isclearly a dominant theme in the early state constitutionalism. Allpower is vested in, and consequently derived from, the people, is anoften-cited sentiment in constitutions.ccxliv Donald Lutz and other stateconstitutional scholars have rightly pointed out the emphasis on the The Constitutionality of Moral Legislation 133authority of the people in early state constitutions.It is one of thedominant themes in the early documents and is found explicitly in allbut South Carolina s constitution.(See Table 3 at the end of thischapter.) Maryland suggests a subtle clarification that not allgovernment is established by popular sovereignty, but that alllegitimate government, or government of right, must be soestablished [ Pobierz całość w formacie PDF ]
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.This more expansive approach canbe taken regardless of whether a political community relies more uponnatural law, divine law, or popular sovereignty as a basis for itslegislative judgments.What differs is the basis for determining whatbehaviors are considered to be good for its citizens.The distinction between these two categories of moral legislationwill be at the heart of this chapter.In order to better understand theearly American constitutions approach to moral legislation, the topicsof civil law and political power will be discussed as an introduction tothe analysis of the state constitutions.The issue of legitimate use ofpolitical power and the role and making of law is obviously of centralimportance to the question of legislation of morality, as the aboveparagraphs demonstrate.In addition, since law making is intended toserve the interest of the community for all the early American states,the issue of popular sovereignty will be taken up to discuss the variousviews of popular sovereignty held by early Americans.CIVIL LAW & POLITICAL POWERAs discussed in the last chapter, many of the early Americanconstitutions articulate a belief in, and commitment to, individual The Constitutionality of Moral Legislation 131natural rights.If such rights are grounded in the nature of humanbeings and recognized by a regime, why is there a need for civil law?The answer for the early Americans comes out of their view of humannature.There is a tendency for human beings to violate the naturalrights of others when seeking to enjoy one s own natural rights.Thus,civil law is understood to provide necessary limits on individual libertyto safeguard against violations of natural rights.For example, whenone person prepares to reap a harvest of grain after plowing and sowinghis or her field, others have a propensity to take the grain forthemselves if they are stronger since doing so is easier than plowingand sowing for themselves.It is because of this propensity of humanbeings to infringe on the rights of others that the need for civil lawarises.Civil law consists of clearly established rules for the communitythat are applicable to all.Civil law is in contrast to giving one person orgroup the power to make arbitrary judgments whenever disputes arise.Consistent with their strong commitment to equality, civil law for theAmericans must be enforced without preference for any individual orgroups so that each individual s rights are protected.Civil law, of course, is not self-enforcing.There must be humanagency to execute the laws established.In order for government tofulfill its function of protecting citizens from having their rightsviolated by other citizens or foreigners, it must have sufficient power todeter or punish violations of the laws.The problem with politicalpower, however, is that it is a two-edged sword.Political power can beused to legitimately punish those who violate the rights of theircitizens.However, it can also be used illegitimately when governmentofficials use their political power to violate the rights of fellow citizens.For this reason, Americans attempt to dull the sharpness of the latterside of the blade in order to hinder government from illegitimatelyusing political power.The potential for government officials abuse oftheir power is just as real as the potential for individuals to use theirresources to violate others rights for personal gain.The goal for earlyAmericans is to hinder the use of political power for illegitimate ends,while entrusting government with ample force to legitimately deter andpunish violators of rights.The means to this end are multitudinous inthe state constitutions, including separation of powers, fixed terms ofoffice, and free elections.Many of the methods constructed to restrict governmental powerfrom being used illegitimately are associated with the process of Faith, Reason, and Consent132making good laws.They are attempts to influence the law makingprocess so that good laws are enacted.Obviously, good laws cannotcompletely solve the problem.Good laws cannot completely stop agovernment official from using the power vested in him or her tooppress citizens.If you give a police officer a gun, you run the risk ofthat officer unjustly killing a citizen.Good laws, however, provideclear rules defining what citizens and public servants can and cannot doto other citizens.They define legitimate versus illegitimate use ofpolitical power.Good laws define acceptable and unacceptablebehavior for both the private citizen as well as the public official, andspell out the implications for overstepping those laws.The questionthat this chapter will address is the extent to which the stateconstitutions authorize their governments to regulate moral behavior.Do they support a more restricted approach to the legislation ofmorality or a more expansive role?The American states attempt to structure political power in such away as to construct a regime which makes good laws, executes themwell, and judges justly when disputes about interpretation of law arise.Separation of powers, for example, is an attempt to distance the law-making function from the executive function so that the persons whowield the political sword are not the same persons who make the rulesfor how and when the sword can be used.If the role of making law andthe power to execute it are placed in the same political office or body,the potential increases for laws being enacted that (1) are preferentialtoward the ruling group and (2) are in conflict with the principles ofnatural rights.Separation of powers, therefore, is a device whosefunction is to limit the use of political power in a manner that protectscitizens rights from violation by government.POPULAR SOVEREIGNTYNo person has a natural right to rule politically this much is veryclear to the early Americans.Popular sovereignty means that all theinhabitants of the political community collectively retain ultimatesovereignty within the regime.The principle of popular sovereignty isclearly a dominant theme in the early state constitutionalism. Allpower is vested in, and consequently derived from, the people, is anoften-cited sentiment in constitutions.ccxliv Donald Lutz and other stateconstitutional scholars have rightly pointed out the emphasis on the The Constitutionality of Moral Legislation 133authority of the people in early state constitutions.It is one of thedominant themes in the early documents and is found explicitly in allbut South Carolina s constitution.(See Table 3 at the end of thischapter.) Maryland suggests a subtle clarification that not allgovernment is established by popular sovereignty, but that alllegitimate government, or government of right, must be soestablished [ Pobierz całość w formacie PDF ]