Timothy N. Baldwin, JD.
September 30, 2011
Interpreting and Applying the Constitution
Hegel’s philosophy on interpreting and applying the constitution of a State is perhaps the most tangible and evident as it relates to constitutional law and political direction in the United States. Hegel’s view of the constitution is similar to his view on the formation and purpose of the State as discussed in Part 3. As will be seen in this discussion, many politicians and office holders in the United States have, knowingly or not, adopted Hegel’s view of our federal and state constitutions. Consequently, it is destroying the very nature of the constitutions themselves and is accomplishing Hegel’s vision of the State.
Hegel determines that a State’s constitution need not be interpreted and applied in light of the framers’ intent and purposes. Hegel says, “Another question readily presents itself here: ‘Who is to frame the constitution?’ This question…is meaningless[.] [I]t is absolutely essential that the constitution should not be regarded as something made, even though it has come into being in time. It must be treated rather as something simply existent in and by itself” (Georg Hegel, Philosophy of Right, Ed. University of Chicago, Trnsl. T.M. Knox, [Encyclopedia Britannica, Oxford University Press, 1952], 91). Just as the purpose of the State is not to be considered when factoring the power of the State (see, Part 3), Hegel likewise determines the organic meaning of the constitution is not to be considered. To Hegel, there are no reference points or “first principles” in interpreting and applying the State’s constitution.
To Hegel, a constitution is a living organism—taking a life of its own—to change and develop as society changes and develops without the need for formal amendments or the people’s expressed consent. The change and development of society is not determined by the people, but by government. The constitution is the State’s method of objectifying through laws its subjective will. Hegel states, “the constitution…depends in general on the character and development of its self-consciousness. In its self-consciousness its subjective freedom is rooted and so, therefore, is the actuality of its constitution” (92, emphasis added).
Expressly stated, Hegel finds that the constitution’s development must be realized by government. Hegel puts no merit in the notion that the constitution’s original meaning and purpose must be applied to the actions and laws of government. Instead, the government’s actions and laws define the constitution as a developing idea of self-consciousness. The constitution is less about limitations upon government and more about empowering government so there will be no restrictions in its self-consciousness development.
Hegel describes the constitution as “rational” as long as the State carries out its powers in accordance with its concept—to objectify “freedom” for individuals in society (see, Part 2). To further understand Hegel’s concept of a constitution being “rational”, one must understand what he describes as constitutional powers of the State.
First, Hegel describes the rational constitution by describing the “power of the Crown”, saying that “this absolute self-determination constitutes the distinctive principle of the power of the crown” (92, emphasis added). Hegel finds that a constitution must have a sovereign power of government in one person, and this sovereign power equates to the “universality of the constitution and laws” (92). In other words, the crown contains universal power of the State according to its “concept”. It must have the power to carry out the State’s will, not considering natural law and constitutional limitations.
Second, Hegel sees the legislature body as being merely “a mediating organ” between the people and the sovereign power (101). To Hegel, any and all branches of government are not purposed to check each other; but rather, to act as an aggregate of the same unit (101). They are sort of team players playing different positions. In fact, Hegel finds the separate branches of government to be an absurd notion contrary to the “concept of the State.” Undermining the Enlightenment philosophy, Hegel says that any opposition the legislators present to the executive “is reduced to a show” (101). “There may indeed be an appearance of opposition between them,” Hegel says, “but if they were opposed, not merely superficially, but actually in substance, then the state would be in the throes of destruction” (101). To Hegel, actual opposition within government hinders its self-development, which is universally executed by the crown. The legislators serve more as spokesmen for the interests of particular groups; not as advocates to protect inalienable rights of the people and collective rights of society and to check the power of the executive.
In Hegel’s view, both executive and legislative branches serve not as representatives of the people or holders of the constitution. They act as organisms of the State—the developing self-consciousness of its constitution. Their purpose is to carry out the self-determinative will of the State. The constitution is primarily the power of the State carry out laws according to the ever changing character of its will. Hegel expressly says,
patriotic sentiment [i.e. universal duty to submit to the laws and institutions
of the State] acquires its specifically determined content from the various
members of the organism of the state.
This organism is the development of the Idea to its differences and their objective actuality…Throughout this process the universal maintains its identity, since it is itself the presupposition of its own production. This organism is the constitution of the state” (84).
A “rational constitution” is one of power, not limitation. There are no fundamental notions of rights, freedoms, liberties, etc., which are to limit the action of the State. This would get in the way of the “organism” being able to grow and thrive as the objectification of reality; for as Hegel puts it, “[that State’s] end is the universal interest” (84). This universal interest is determined by the crown and his mediators (i.e. legislators) and by whatever factors influence those controlling State actions. Once that universal interest is determined and executed, the State has conformed to a “rational constitution.”
The Enlightenment philosophy cannot be more polemical to Hegel’s concepts of a constitution. To Enlightenment philosophers, substantial priority was placed on the States’ constitution, necessarily including its formation, interpretation, application, and preservation. This philosophy was, of course, the adopted view of the United States’ founding fathers (See, U.S. Constitution, Art. 6).
Emer de Vattel defines a constitution as the “fundamental regulation that determines the manner in which the public authority is to be executed” (Law of Nations, [Indianapolis, IN, Liberty Fund, 2008], 91). Vattel describes the constitution in terms of authority extended with limitations so that government may “obtain those advantages with a view to which the political society was established” (92). Clearly, Vattel’s description anticipates both the advantages to society and those individuals comprising it, as well as the purpose for which the State was created.
“The perfection of a state, and its aptitude to attain the ends of society,” Vattel says, “must then depend on its constitution” (92). Again, the “ends of society”—namely, to protect life, liberty, and the pursuit of happiness of individuals—is the purpose of the constitution. Therefore, Vattel emphasizes the importance of creating a constitution grounded in sound principles of natural law. Vattel states, “[the state’s] first and most essential duty towards itself, is to chuse the best constitution possible, and that most suitable to its circumstances…[for] its own preservation, safety, perfection, and happiness” (92).
This perspective of a constitution was extremely important because in the view of Enlightenment philosophers “this constitution is a vain phantom, and the best laws are useless, if they be not religiously observed: the nation ought then to watch very attentively, in order to render them equally respected by those who govern, and by the people destined to obey. To attack the constitution of the state, and to violate its laws, is a capital crime against society” (93). In contrast to the “living constitution” concept advocated by Hegel, Vattel clearly describes a constitution as being fixed in principles and original in meaning; and for this reason states, “[the state] cannot take too much care in place [its preservation, safety, perfection, and happiness] on a solid basis” (92). Thus, the United States Supreme Court before correctly iterated,
“We are bound to interpret the Constitution in light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject—such as his ancestors had inherited and defended since the days of Magna Carta.” Mattox v. United States, 156 U.S. 237, 243 (1895).
Were a constitution a living development of self-consciousness as Hegel describes, there would be no real need in creating a “solid” constitution. By nature it would be fluid and changeable upon the discretion of those in government power. Wherever power was needed to accomplish the State’s subjective will, power was used; and that was considered the “rational constitution”, according to Hegel.
This was not the case with the Enlightenment philosophers. Just the opposite, Hegel’s view of the State’s constitution was considered a capital offense against society. Vattel charges the people of the State not only to serve as watch dogs to State officials, but also to resist them. Vattel observes,
“The nation ought constantly to repress them with its utmost vigour and vigilance, as the importance of the case requires. It is very uncommon to see the laws and constitution of a state openly and boldly opposed: it is against silent and gradual attacks that a nation ought to be particularly on its guard…It would be rendering nations an important service, to shew from history, how many states have thus entirely changed their nature, and lost their original constitution. This would awaken the attention of mankind:--impressed thenceforward with this excellent maxim, principiis obsta [‘Resist the first advances’]” (93).
The Declaration of Independence, the foundation of American ideology, said the same thing, declaring, “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” Thus, a constitution’s true meaning being solid, only to change upon the will of the people, is the Enlightenment approach and the foundation of American constitutional law. This approach fundamentally serves as a limitation on government and protection of individuals’ rights, even if it means the movement of government is stifled and not efficient.
Observations and Conclusion
There is a striking difference between Hegel’s and the Enlightenment’s view of interpreting and applying the constitution. Interestingly, many politicians in the United States claim the U.S. constitution and State constitutions are “living” without regard to the active determination and effectuation of the people’s will. Such a proposition is blatantly incorrect and shows either ignorance or machination.
Tragically, many judges, attorneys, sheriffs, police chiefs, and other State and federal officials have adopted Hegel’s view of the constitution; and most law schools advocate the same notion. For example, consider the United States’ Supreme Court decision in 1920 which adopted this Hegelian view of the U.S. constitution:
“[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism.” Missouri v. Holland, 252 U.S. 416, 434 (1920).
This statement conforms precisely to Hegel’s philosophy of the State. Moreover, this court expressly used Hegel’s concepts (see, Part 3). When the U.S. Supreme Court uses concepts like this to reach its decisions, it is no wonder why we have presidents who claim the U.S. Constitution should or need not be followed as intended by the founders. Case in point: Obama said, the United States needs to break “free from the essential constraints that were placed by the Founding Fathers in the Constitution.” According to Obama, the tool to accomplish this is, of course, the “living, breathing constitution.” This has been a widely used “constitutional” view and is mostly a justification to enlarge the power of the federal government and decrease the power of the states and individuals. Consequently, the constitution’s original character has been undermined decision by decision—and by force. It has largely been successful, regardless of conservative rhetoric from politicians.
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These people’s oath to uphold our constitutions are shadowy at best because they uphold something entirely different than what the constitution envisioned—a philosophy which created the soil and roots of Karl Marx’s communism and Adolph Hitler’s autocracy, and its degenerative affect continues in America. Considering most practicalities, Hegel’s philosophy has accomplished what Emer de Vattel describes as a nation whose character has been changed and constitution destroyed by the slow and gradual attacks upon the principles which formed the constitution.
Office holders and seekers should be chained to the questions regarding this subject. Without a public understanding of this philosophy, Hegel’s “Idea” will continue to thrive.
The following subjects will be further developed.
Individual Freedom and State Supremacy (Part 2)
B. Formation and Purpose of the State (Part 3)
C. Interpreting and Applying the Constitution (Part 4)
D. Republicanism and Democracy (Part 5)
E. The People’s Right of Revolution (Part 6)
F. Religion/Church (Part 7)
G. War (Part 8)
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George Neumayr , Pulling
the Plug on the ‘Living’ Constitution, The American
Spectator (March 24, 2010).
2. WorldNetDaily, President-elect would seek changes in Supreme Court, (December 5, 2008), “the Constitution is a living and breathing document and that the law and the justices who interpret it have to understand that” (statement made by Melody Barnes, a senior domestic policy adviser to Obama, about Obama’s view of the constitution).
© 2011 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin is an attorney licensed to practice law in Montana (and Florida) and focuses on constitutional issues. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and Political Discussions for People of States–all of which are available for purchase through Liberty Defense League. Baldwin has also authored hundreds of political science articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: LibertyDefenseLeague