Hermit's Weblog
everything your mother never taught you about how the world really works.

Sun, 18 Dec 2005

The Letter and the Spirit of the Fundamental Law of the Land: the U.S. Constitution

A recent article in the NY Times points out that from early 2001, legal theorists, inside the White House staffs of both the President and Vice-President, have advocated an expansion of the interpretation of Presidential powers. An odd thing to write about 4 years later, but I guess the Press wasn't paying attention in the beginning (or maybe they are just really stupid).

The reality is that attempts to interpret the Constitution in literal or strict or to the letter ways - all these are going to miss the point, something the Supreme Court on many occasions has done as well. The Constitution is an attempt to embody an Idea, and this Idea is not in the document in the letter or formalism of its written text, but can only be apprehended when we think this Idea by inwardly contemplating the whole document and the context in which it arose.

In the first case we get the Letter of the Law, which is Law in its weakest form, and in the latter case we get the Spirit of the Law, which is Law in its strongest form. The seeking by the Bush II administration for some interpretation of the letter of the Law in order to justify its excessive (extra constitutional) abuse of power is a violation of the true Spirit of the Constitution.

The reason the Letter of the Law is weak is because in a Society based upon the Rule of Law, it is our agreement and Consent that makes Law work. The Law itself is a secondary element to our Consent, and our Consent is dependent upon our agreement - our sense of the rightness of the Laws we are willing to follow. This sense of rightness comes from the Spirit of the Law, not its application in forms of strict interpretation. The State, when it applies its powers arbitrarily, violates this Spirit and thus losses our Consent.

Let me elaborate on that Spirit that inspires our Consent to live under the Rule of Law.

The U. S. Constitution arises in a particular moment of history, which gives us its fundamental meaning. This meaning is elaborated in the Declaration of Independence, and these two meanings - its unwritten historical significance and its placement as an act of independence from the English Crown - these are the Spirit (Being) of the Constitution - its reason for existing.

What was declared was that the fundamental power of government was not in an aristocracy of blood (or wealth, as is the current way political leaders act), but in the People. The Constitution is then a Temporary Grant of Power, and as such an act of Trust.

A President then, as the temporary representative of constitutional executive power, is holding a Sacred Trust for the People. This is the Spirit of the Fundamental Law of the Land, and the search by the Bush II administration for wiggle room on which to hang their egoistical and arrogant abuse of that Trust is nothing less than an act of Treason against this Spirit.

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