Law by the Few

Recently one of the Harvard Law School types wrote a paper in The Atlantic proposing what he terms "Common-good constitutionalism" He describes it as follows:

Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium— the law of nations or the “general law” common to all civilized legal systems— and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.
Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.

 This elitist approach assumes that there exists some select group of the ordained who can decide what is the common good. Such a group would thus have a say on what we can and cannot do.

The Founders were in many ways the result of the Individualist school based on Natural Rights and the resulting Natural Law. As I have noted regarding Natural Rights, we humans have a sense of what we have a right to, driven by the genetic makeup of our limbic system. Western political individualism is embedded in our very own genetic code. However there is always a class of people who want to dominate others. Fortunately our Founders understood this and as such we have the Bill of Rights. These rights are the expression of Natural Rights, limits on man made laws so as not to trample on our person.

Individualism is a powerful driver for the overall success of the United States. We have always had groups of people who want to destroy that fabric, ranging from Marxists, Communists, Socialists, and the select group of self appointed academics. This above statement is a cl*ear indication that we have imminent dangers arising from the Academy, all too frequently from those who deem their opinions are better than any other individual. The come from echo chambers whose members deem themselves as holders of truth.

Regrettably students can be manipulated to see this as a path to success, namely believing in and proselytizing this construct. Originalism is a view of the Constitution, but more importantly the essence of our Natural Rights can only be defended and secured if we recognize these characters who seek to destroy it and secure for themselves abject power.