America has been a wildly successful country because of its sustainable government, and we can thank our founders for making that possible. However, the Obama presidency has done more to damage that sustainability than any administration in the nation’s history.
All governments are systems of ruling or controlling, and every system of government has a source of power. Every government’s source of power may be visualized as being at some point on a continuum of power. At one end of the continuum is anarchy at which there is no law, no order, and no systematic control and quickly slides into some form of tyranny. Tyranny resides at the other end of the continuum and imposes too much control and results in loss of freedom, oppression, and eventual slavery. Under the one system there is no law; under the other is the ruler’s law. What the Founders’ desired was a people’s law with “…enough government to maintain security, justice, and good order, but not enough government to abuse the people.”[1]
People’s law resides at the center of the continuum between anarchy and ruler’s law. How is this achieved? The Founders began their task with an understanding of the tendency of governments and cultures throughout history to swing from one extreme (tyranny) to the other (anarchy) and back. The Founders also recognized the difficulties of sustaining a government based on the people’s law because of the inherently corrupt nature of mankind.
In creating a government that was sustainable, the Founders recognized the inherent fallibility of any system of government based solely on law designed and guided by corrupt human nature that ultimately devolves into a succession of governments of tyrants or roiling mobs. To address the tendency of governments to fluctuate between the extremes of tyranny and anarchy, the Founders formed a government based on constitutionalism. A constitution designed by the people to reflect the people’s law marks the boundaries or limits of power delegated to the rulers of government. Because the Founders recognized the truth of the fallen nature of man, the American Constitution included a system of checks and balances known as the separation of powers.
By the late nineteenth century the tentacles of humanism would spread into American jurisprudence and began to undermine the biblical foundations of the law that had been laid by the Founders and threatened the restraining force of the Constitution. The new theory of law was based on relativism and introduced by Harvard Law School Dean Christopher Langdell in the 1870s. The major tenets of the progressivists’ theory of law are:
There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system.
Since God is not the author of law, the author of law must be man; in other words, the law is law simply because the highest human authority, the state, has said it is law and is able to back it up.
Since man and society evolve, therefore law must evolve as well.
Judges, through their decisions, guide the evolution of law.
To study law, get the original sources of law – the decision of judges.[2]
In his incisive indictment of progressivism in American jurisprudence, Bradley C. S. Watson states that “…such jurisprudence is destined to be destructive to any and all claims of moral truth…not only hostile to the liberal constitutionalism of the American Founders, but to any moral-political philosophy that allows for the possibility of a truth that is not time-bound.”[3]
Watson believes that there are two fundamental facts that mark the founding of America and subsequently the design of the Constitution. One was creedal and one was cultural. First, the Founders had a creedal “…understanding of natural rights, which were held not to be culturally derived or time-bound or subject to infinite incremental growth, but applicable to all men everywhere and final.” [emphasis added] In other words, there were eternal truths which transcended man and his time on this earth and were inviolable. Second, the Founders believed that American culture resulted from inherited or customary understandings that reflected the application or working out of the principles of timeless truths in daily life. The Founders’ creedal and the cultural beliefs were not in conflict but expressions of the same truth, and both rested firmly on the foundation of the Judeo-Christian faith and its eternal truths.[4] These two facts regarding the founding of America stand in stark contrast to progressivism’s faulty assumptions of the evolutionary nature of the Constitution and laws.
Because of the nature of the duties of the judiciary, Progressivists’ damage to the separation of powers under the Constitution has occurred primarily within that branch of government. But the brazen overreach of the Obama administration through disregard of Constitutional limits on executive powers may be unparalleled in American history. In addition to scorning the rebukes by the Supreme Court for his un-Constitutional executive actions, the President has violated his Constitutional duty to faithfully execute the laws by selective enforcement and/or changes to laws enacted by Congress. Additionally, the administration has regularly circumvented the powers of the legislative branch through the issuance of illegitimate executive orders to accomplish what Congress would not approve.
Such is the seriousness and extent of the abuse of power of the executive branch that on July, 16, 2014, Constitutional scholar Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University, appeared before the Committee on Rules of the U.S. House of Representatives to discuss litigation for actions by the President inconsistent with his duties under the Constitution. In his prepared remarks, Turley stated:
The President’s pledge to effectively govern alone is alarming but what is most alarming is his ability to fulfill that pledge. When a president can govern alone, he can become a government unto himself, which is precisely the danger that the Framers sought to avoid in the establishment of our tripartite system of government. In perhaps the saddest reflection of our divisive times, many of our citizens and Members are now embracing the very model of a dominant executive that the Framers fought to excise from our country almost 250 years ago.[5]
Sustainable government requires adherence to Constitutional limitations of power and the recognition of and adherence to timeless fixed moral and political truths from which there can be no departure. However, because of the ascendance of the humanistic worldview, there is an assault on these principles necessary to sustain government. In American jurisprudence this assault is a result of judicial activism that changes or creates laws or goes against precedent rather than just applying or interpreting laws. The more recent assault on the Constitution by the executive branch is evident in the maneuverings of a president seemingly bent on one-man rule based on man’s law disconnected from eternal truths.
As a result of these onslaughts, the hard-won people’s law of the Founders is endangered, and the end of our once sustainable American government is at hand. It is time for the states, Congress, and the American people to reign in the judicial and executive branches of government and return to the Constitutional balanced of powers as Madison and the delegates to the Constitutional Convention intended.
Larry G. Johnson
Sources:
[1] W. Cleon Skousen, The 5000 Year Leap, (www.nccs.net: National Center for Constitutional Studies, 1981), pp. 10, 19.
[2] David Barton, Original Intent, 5th Edition, (Aledo, Texas: Wallbuider Press, 2008), pp. 233-234.
[3] Bradley C. S. Watson, Living Constitution, Dying Faith, (Wilmington, Delaware: ISI Books, 2009), p. xvi.
[4] Ibid., pp. 23-14.
[5] Jonathan Turley, “Authorization to Initiate Action for Litigation for Actions by the President Inconsistent with His Duties under the Constitution of the United States,” Committee on Rules, U.S. House of Representatives, July 16, 2014. http://docs.house.gov/meetings/RU/RU00/20140716/102507/HMTG-113-RU00-Wstate-TurleyJ-20140716.pdf (accessed August 11, 2014).
