by Emmett R Smith
IT Is a commonplace that many of our present woes under an amuck government stem from the greed & drive for power of certain kinds of epimethean & comparatively unintelligent, political, personality. The corollary is that our rights as citizens are more often than not under direct attack by these functionally non-moral sub-types; and, this is fair enough to say, not least because we have been living for the past seventy-four years under an ever-more “imperial” Presidency. The remedy is nevertheless to be found in the Constitution. Constitutional theory recognizes rightly that “consent of the governed” is a chimera. Thus, consent to a constitutional order is the more-accurately to be inferred, through both structural & explicit guarantees in constitutions, from a priori “rights.” The historical “discovery” about rights proceeds from the platonic to the utilitarian; and, it is that by agreement & contract rights can be pre-sumed (NB) as implicit & hence assumed as operative and, therefore, are decisive in law. Presumed rights guaranteed & assumed guarantees enforced by an independent judiciary (a judiciary that is, above all, presumptuous!), it follows then, in the political arenae of the democracies, that the daily & fluid question, of the ever-shifting priority of rights, collides in the legislative, administrative and judicial dance. Curiously, there is, in America at least today, a load of rubbish & bellyaching about “activist” judges. Properly speaking, all judges are constitutional activators, QED. Their role, precisely, is to lay the individual citizen’s powerdrive by the heels whensoever that appetite disadvantages the rights of any other citizen(s). Be that as it may, the “powerdrive” therefore is not as such to be discouraged in constitutional individuals (citizens, eg); but, rather, had ought to be fostered by educations that convey personal ensembles of competency; and, with these, the idea that one individually in life has something to discover and to do; all grounded in explicit constitutional knowledge that enforces the ethical concept of a creative “responsibility to act freely.” A presumptuous citizenry thus becomes the great electorate of the executive and legislators; and, it is the great guarantor, above all of the assumptions of the judiciary.
THE Following review of Philip Bobbitt’s Shield of Achilles should be instructive:
[Emmett R Smith all rights reserved 5 May 2007]