Constitution, Society, and Leadership

1. Week 1 Unit 4 Seven Key Concepts Constitution, Society, and Leadership Christopher Dreisbach, Ph.D. Johns Hopkins University

2. Unit Introduction-i • As noted in the syllabus for this course • The primary values that the Constitution embodies, in terms of their central role in political rhetoric in the United States, are • Rights • Laws • Justice • These are three focal values of this course. 

3. Unit Introduction-ii • In addition to rights, law, and justice, four other values appear in American rhetoric that ties our national ethic to the Constitution • Democracy • Capitalism • Americanism • Equality

4. Unit Introduction-iii • This Unit offers a brief overview of each of these 7 values. • The first three are discussed in much greater detail as the course progresses • The other four are discussed from time to time throughout the course

5. Laws-i • There are three basic theories of law • Natural Law Theory • Legal Positivism • Legal Realism • Each of these has a corresponding important document in American History

6. Laws-ii • Natural Law Theory • Has three basic tenets • Law comes to us from a higher power, such as God • Law and morality walk hand-in-hand • With natural law come natural rights • Corresponding Document: The Declaration of Independence, 1776

7. Laws-iii • Legal Positivism • Three tenets • Law is made by people in the position to make law • That is, who can back up their commands • There is no necessary connection between law and morality • There are no natural rights • All rights are conferred by the legal authority • Corresponding Document: The Constitution of the United States of America, 1787

8. Laws-iv • Legal Realism • Three Tenets • Judges make law • There is no necessary connection between law and morality • Rights are conferred by judicial decision • Corresponding Document: Marbury v. Madison, 1803

9. Rights-i • There are four basic types of rights • Inalienable and Positive • Inalienable and Negative • Conferred and Positive • Conferred and Negative

10. Rights-ii • An inalienable right, by definition, • Cannot be taken away • Cannot be given away • The Declaration of Independence claims at least three inalienable rights • Life • Liberty • Pursuit of Happiness

11. Rights-iii • Conferred rights are rights that can be • Taken away • Given away • All rights the Constitution recognizes are conferred rights.

12. Rights-iv • A positive right entails someone else’s duty to help the rights holder exercise that right. • E.g., in a valid contract to buy a car, the buyer has a right to the car to the extent that the seller has a duty to give up the car.

13. Rights-v • A negative right is simply the duty to be left alone in the enjoyment of that right. • E.g., while I might have a right to brush my teeth, no one else has a duty to brush them in order for me to exercise my right. • Note that Roe v. Wade confers a negative right on a woman to have an abortion. • No one has a duty to give her one.

14. Rights-vi • In addition to the four types of rights we’ve just enumerated, • Rights can be legal, but not moral • E.g., the legal right prior to 1865 to own slaves in the United States • Rights can be moral, but not legal • E.g., Rosa Park’s right to keep her seat on a public bus in Montgomery, AL in 1955. • Of course a right can be both moral and legal.

15. Rights-vii • Thus there are at least 8 logically possible sorts of rights, which we should keep in mind when using the word “rights”: • Legal, inalienable, positive • Legal, inalienable, negative • Legal, conferred, positive • Legal, conferred, negative

16. Rights-viii • Moral, inalienable, positive • Moral, inalienable, negative • Moral, conferred, positive • Moral, conferred, negative

17. Justice-i • There are at least three sorts of justice • Distributive Justice • Commutative Justice • Retributive Justice

18. Justice-iiDistributive Justice-i • Distributive justice is about fair distribution of goods and services among all who have a right to them • There are three basic theories of distributive justice • Libertarian • Egalitarian • Utilitarian

19. Justice-iiiDistributive Justice-ii • Libertarianism: What’s mine is mine and it is not just for someone to take it without my permission. • E.g., if I made a pie with my own ingredients, on my own time, and using my own equipment • No one else has a right to take it, even if he is starving. • Egalitarianism: every legitimate stakeholder should get an equal piece of the pie

20. Justice-ivDistributive Justice-iii • Utilitarianism: Justice means distributing the pieces of the pie in a way that ensures the greatest good for the greatest number.

21. Justice-vCommutative Justice • Commutative justice is about contracts • What is a contract? • Who may enter into a contract? • What are the proper limits of a contract?

22. Justice-viRetributive Justice-i • Retributive Justice is about punishment • What is the proper purpose of punishment? • Restitution • Rehabilitation • Revenge • Setting an example • Prevention

23. Justice-viiRetributive Justice-ii • What is the proper form of punishment? • Execution • Incarceration • Community Service • Financial Penalties • Are there alternatives to retribution? • Restorative Justice • Transformative Justice

24. Democracy-i • Democracy is a form of government in which the people rule by majority. • The word “democracy” does not appear in the Constitution • But it is a basic American value • And it is often associated with the Constitution

25. Democracy-ii • In general there are two kinds of Democracy • Strong: in which every citizen has a direct say in every public policy decision • Weak: in which authorities other than the people themselves have decision-making power in matters of public policy

26. Democracy-iii • Note that the Constitution guarantees a Republican form of government • Which many define as a representative democracy • That is, people have a direct say in who represents them, • But the representatives then have independent decision-making authority

27. Capitalism-i • Capitalism as an economic system is the private ownership of the means of production. • It is most often contrasted with Socialism, which promotes state ownership of the means of production • The general assumption is that America’s economy is capitalist • And that the Constitution protects it

28. Capitalism-ii • Two forms of capitalism that are especially relevant to America • Free Market (“Laissez-faire”) • State Welfare

29. Capitalism-iii • Free Market capitalism calls for absence of all regulation in the marketplace, except the forces of supply and demand • The assumption is that if everyone has a chance to succeed in the market, the “invisible hand” of capitalism (Adam Smith’s term), will sweep out the undesirable goods and services, and the desirable will rise to the top.

30. Capitalism-iv • State Welfare Capitalism recognizes capitalism as the default economic position, • But calls for the state to step in when the economy is causing unjust suffering. • Although there is a lot of lip service in America to Free Market capitalism, • The current economic model in America is much closer to State Welfare Capitalism

31. Americanism • Americanism is the doctrine that America’s values are so desirable that other nations should embrace them too. • Much of America’s global policy aims at promoting capitalism and democracy • Through economic and military incentives.

32. Equality-i • While the Declaration declares that “All men are created equal” and calls for the government to honor this equality, • The word “equal” does not appear in the Constitution until the 14th Amendment (1866).

33. Equality-ii • Amendments, legislative acts, and judicial decisions have opened up more and more goods and services to more and more classes of people • So in this sense there is more equality in America than ever before.

34. Equality-iii • But questions remain, e.g. • Equality of Opportunity v. Equality of Success • Affirmative Action and Reverse Discrimination • Equal Treatment v. Fair Treatment • As we shall see there is a lot of overlap between talk about equality and talk about • Laws • Rights • Justice

35. Week 1 Unit 4 Seven Key Concepts Constitution, Society, and Leadership Christopher Dreisbach, Ph.D. Johns Hopkins University