The Legal Basis for a Moral Constitution by Jenna Ellis Esq

Author:Jenna Ellis Esq. [Jenna Ellis, Esq.]
Language: eng
Format: epub
ISBN: 9781512722741
Publisher: WestBow Press
Published: 2015-12-22T05:00:00+00:00

These three premises, taken together, are what the Founders asserted through the Declaration of Independence. Each is necessarily as important as the other to create the proper balance of the legitimate role of government. We can see through the logical conclusions of these premises that they are not inconsistent with each other or incoherent separately. They provide the most basic assertion of what our government must look like.

Logically then, the Founders wanted the form of government that would provide the optimal outcome, consistent with the principles of the proper role of government. Government is necessary to secure rights. But because it is also true that there will never be a perfect government, there will be some level of government failure either to secure unalienable rights or to abridge them.

The Founders acknowledged this: if men were perfect, no government would be necessary to secure unalienable rights. But because government is necessary to govern imperfect men, government run by imperfect men will therefore also be imperfect.

James Madison pondered this, writing in Federalist No. 51:

“It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. … If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”90

The principle of optimal outcome states that there is one available alternative (among all available alternatives) that will lead to a better outcome than the remaining alternatives. This is a principle in decision theory, and an example of this is financial investment. Financial investment involves two competing principles: minimizing risk while maximizing gain. There cannot be gain without some risk, so the optimal outcome is to choose the alternative among all financial investment decisions that is the smallest risk for the biggest gain.

In government political theory, these are the three premises of government the Founders stated, and inserted into an optimal outcome equation, it would be expressed like this: The optimal civil government is the form of government that maximizes securing rights and minimizes abridging them, while operating within the scope of legitimate authority.

Again, we know that there is no perfect form of government that will secure rights 100 percent while abridging them 0 percent. So the optimal outcome is as close to 100 percent in securing while simultaneously as close to 0 percent abridging, and consistent with the third principle: still exercising legitimate authority. This is the balance of powers to limit government authority, and the balance between government authority and consent of the governed.

We can readily point to historical examples of how governments have not achieved this optimal outcome either by too much securing with too much abridging, not enough securing with too much abridging, etc., or utilizing methods of securing or abridging, or both, that constitute illegitimate authority (Hitler’s government would be an example).

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