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Responses to Bradley, and His Reply
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12154 |
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Section : |
MODERN THOUGHT
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| Issue
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3 / 1994 |
9,435 Words |
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Russell Hittinger, Sanford Levison, Robert P. George, John Robinson, Gerard V. Bradley
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Government by Dissent
A Note on Our Judicial Sovereigns
by Russell Hittinger
Governments of the old regime, whether of the throne or the altar, traced their sovereignty to divine decree. They were governments of descent rather than consent. Of course, the royal and ecclesial regimes incorporated consensual principles. In the feudal order, kings recognized customs of the people and the rights of the aristocracy. In the ecclesial order, popes were elected by the college of cardinals. Important matters of policy were addressed in the form of synodal and ecumenical councils. But the fact remains that, however the power was used and however it might have been diffused through subordinate bodies, the imperium descended from God.
It should be an uncontroversial proposition that in the United States, the government is one of consent rather than descent. This principle is made clear in the Preamble to the Constitution: "We the people of the United States . . . do ordain and establish this Constitution for the United States of America." In the case of our regime, the offices of political power do not derive from natural right, from consanguinity, or from a divine decree. There is no legitimate way for this government to use power except in conformance to those powers delegated to it by the consent of the people.
Even a cursory reading of the Constitution shows that the people did not make a plenary grant of power to the U.S. government. Unlike state governments, the United States is not a government of general jurisdiction having police powers. Unlike the royal regimes of old, in which the king was bound chiefly by the moral requirement to use his power wisely and justly, the government of the United States is constitutionally bound to exercise only those powers granted to it. The U.S. government was not given authority to make laws on anything and everything that the government might deem necessary to the well-being of the people. Congress, for instance, was given no power to make laws "respecting an establishment of religion." The wisdom or justice of a congressional statute respecting an establishment of religion notwithstanding, Congress was given no authority to exercise such wisdom. Decisions made by a private person are governed by principles of morality and prudence; but the decisions made by a public officer are also governed by authority of jurisdiction, which is a moral principle in itself. Hence, political power exercised ultra vires (beyond the power authorized by laws)
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