Strengthening Constitutional Self-Government

No Left Turns

Sotomayor Hearings

I’ve been musing over an op-ed the last few days, and I may get one out later today, if I (unlike Senator Grassley) don’t fall asleep. These hearings should be replaced by a multiple choice exam. For amusement, read the SCOTUS liveblog. NRO and the Federalist Society have other sites worthy of checking out.

One basic question for the future Justice: What is the relationship between the Declaration of Independence and the Constitution?

Unless we have some sense of this, we cannot have clarity on Republican questions about the Ricci case and affirmative action/racial prefences, or about individual natural or civil rights (the Second Amendment) and the legitimate powers of government.

Discussions - 33 Comments

Exactly right, as Justice Thomas alone on the Supreme Court understands.

On what grounds can the Declaration be deemed law?

It is the first of the four fundamental laws at the beginning of statute books. It is of course not statuory law, but that is not the controlling issue.

Dear J,

The Declaration is the foundation for the Constitution. If one asks, why does the Constitution devote the government to the goals set forth in the Preamble, why are there three departments of government, why are there regular and free elections, why are the government's powers specified, why may it the Constitution be changed, why does it require popular approval--the answer to all those questions is in the Declaration. Not only the statement of principle but in the implicit premises for the charges against the King of Great Britain, one finds a comprehensive exposition of the requirements of free, republican government. Read it and see for yourself.

I see Harry Jaffa and his quasi-theological, dogmatic ideas about the Declaration still live! Good thing this is about the only place such ideas are still considered at all authoritative.



Basically, J, there are some folks around these here electronico-places who believe that the Constitution means little to nothing without the natural law espoused throughout the Declaration (particularly the preamble). The Constitution (especially when juxtaposed with the Articles of Confederation) is the instrument through which such universal ends can be as explained in the Preamble can be achieved. And, of course, these ends are "good" and "right" and "just" for everyone, everywhere, anytime. Moreover, there is a certain inherent moral responsibility to uphold the "rights" and "principles" of the Declaration (because, after all, they are universal "goods" and bring about "justice").



I think that, at worst, that description is a near-miss. In my opinion, it is a creepy obsession with Jaffa's interpretation of the Declaration fused with a complete lack of contextualization. The language games, socio-cultural norms, and subjective perspectives on law, morality, "goodness", and "justice" explored by more contemporary theorists are ignored so that an objectivist, seemingly arrogant "city on the hill" mentality can be maintained. In short, it reminds me a lot of Christianity: subjective interpretations of a text masquerading as the big-T "truth".



But what do I know? Simone Weil, Rawls, Habermas, Marx, etc . . . I suppose all of their ideas should only be viewed through a worldview which presupposes Anglo-American righteousness (as made "self-evident" through the Declaration)?



Of course, a blog is a silly place to discuss this. I should've probably just thrown out a tongue-in-cheek one-liner in order to avoid the onslaught of proselytizing bound to follow this comment . . .

It is the first of the four fundamental laws at the beginning of statute books. It is of course not statuory law, but that is not the controlling issue.

Good grief! Care to try again? That's obfuscation worthy of Sotomayer.

The Declaration is the foundation for the Constitution.

No, it is not. The Federalist Papers are the foundation for the Constitution.

one finds a comprehensive exposition of the requirements of free, republican government.

In other words, there are no grounds whatsoever for acting as if the Declaration is law. Based on the whacky reasoning of you Jaffaists Sotomayer can do anything she likes. After all, according to you, just as much as to the left, the "true purpose" of the Constitution is to be found in the Declaration, and the good judge is the one who is dedicated to making sure that "all men are equal", the law be damned.

There is scant daylight between the people at Ashbrook and the far left. Both are united in favoring top-down centralized government, for our own good of course.

Matt's objections would have a little more bite if he was not himself prone to exactly the same self-righteous moralizing he finds objectionable in others.

Matt's objections would have a little more bite if he was not himself prone to exactly the same self-righteous moralizing he finds objectionable in others.



Ah, yes. You hold the true key to atomistic self-determination. I see the light now . . .

The purpose of the Federalist can be found in the Declaration--see Fed #40, 43. Natural rights and reason are beyond human will, a teaching quite contrary to Rawls, Marx, Habermas, et al. This understanding of the Declaration separates, say, Justice Thomas from, say, President Obama.

You hold the true key to atomistic self-determination.

I deny the existence of atomistic self-determination. But nice attampt to change the subject from your own bottomless hypocrisy. Now go back to shrieking about "torture! in between your rants about "American righteousness" and mocking of ends which are "good" and "right" and "just".

The purpose of the Federalist can be found in the Declaration--see Fed #40, 43.

What about #54? One of the annoying things about people at Ashbrook is the way they cherrypick which words and documents the rest of us are to pay attention to.

I deny the existence of atomistic self-determination.



Oh. So sorry I missed that. Your ingenious writings are just so sporadically posted throughout NLT . . . Have you considered publishing a compilation?



your own bottomless hypocrisy.



Please. If you could expand your narrow mind for one quick second I think you'd find that your criticisms of my "bottomless hypocrisy" sound a lot like rants against school-boy relativism. But I suppose that on a blog we are all pretty good at building straw-men. After all, it's much more entertaining and sort of self gratifying in that ego-stroking, masturbatory sense that I sense (through binary code, of course) that you are all too familiar with.

1) Matt, I taught my children that the principles of our early government (i.e. the Constitution and the state constitutions) could be found in the Declaration, long before I ever heard of the Ashbrook Center or Harry Jaffa or any other justification beyond my own reason. I was sure I was not original in my thinking and subsequently came to know it.

2) The Federalist Papers are explanation and justification for the Constitution and were a really good marketing effort for the time, but surely are not more than that.

3) Surely our modern problem is not with the idea of all men being created equal, but rather with the idea that some men are more equal than others.

Kate,



Of course they can be found in the Declaration. I don't think anyone would dispute that. To claim that they should still serve, to this day, as the foundation of Constitutional law is an entirely different thing I attribute to Jaffa & Co. The idea that natural law (if that even exists and/or should be preserved) is made manifest in its most perfect form by a group of 18th century Anglo-American men is tantamount to, again, a religious dogma. It's nuts (not you telling your kids that the principles of the Constitution can be found in the Declaration, but that some people think it is the pinnacle of human achievement - this preservation of some perceived natural law in the preamble).



I suppose you could make the same kind of claim about Hammurabi's Code. No one will, of course, because that Code didn't lead to the creation of our nation-state (the greatest of all awesome places, where our good and just Founders were granted this land and the freedoms which could be made manifest in it by God; the Native Americans were an unfortunate casualty, slavery a necessary evil, prohibition a hiccup, universal emancipation something that had always been anticipated by our incredible revolutionary Founders, the welfare state a betrayal of our own Americanism, segregation a disappointing effect of our inability to live up to our Founders' most glorious moral standards and universal precepts, global capitalism our gift of freedom to all the world so that they could eek out a living off of making cheap jeans).



It's fun to build such a silly caricature. But in all seriousness, it's also kind of creepy how often those kinds of things have been either explicitly stated or obviously insinuated by disciples of Jaffa.

What about #54? One of the annoying things about people at Ashbrook is the way they cherrypick which words and documents the rest of us are to pay attention to.

So it's "cherrypicking" when someone cites two of the Federalist Papers, but it isn't if you only cite one?

Matt: It is clear that your contempt for "Jaffaites" comes from a complete disavowal for ancient thought completely, as you say:

"The language games, socio-cultural norms, and subjective perspectives on law, morality, "goodness", and "justice" explored by more contemporary theorists are ignored so that an objectivist, seemingly arrogant "city on the hill" mentality can be maintained. In short, it reminds me a lot of Christianity: subjective interpretations of a text masquerading as the big-T 'truth.'"

This brand of cynicism isn't new; it was not for nothing that Glaucon and Adeimantus suggested in Book I of Republic that morality was only good for holding money. But the basis of conservative thought is the belief in wisdom outside one's self. This emphasis on the past comes from a notion that an understanding of the ancestral cannot be disposed in order to see ourselves, that as Thucydides believed there are universals in the particular.

To the extent that subjective opining exists in Christianity, it is clear that some ultimate standard of Truth exists, for what is the divine but just that? Carried over into our politics, it would seem this truth was most beautifully expressed in our Declaration.

This posturing of yours I feel more arrogant. It seems to be the height of hubris to deem an idea that 600,000 Americans -- and people around the world -- died to save "a worldview which presupposes Anglo-American righteousness." I wonder as I look at today's world how faith in 'progress' has changed things for the better. But when "contemporary theorists" hold the answers ipso facto -- because of their privileged modernity -- it would be hard to see today's problems result from an impoverished soul.

Let us say that you are right, that it was just "Anglo-American righteousness." Still, I sure don't have friends taking bullets for Empire. I don't know about you.

I suppose you could make the same kind of claim about Hammurabi's Code. No one will, of course, because that Code didn't lead to the creation of our nation-state (the greatest of all awesome places, where our good and just Founders were granted this land and the freedoms which could be made manifest in it by God; the Native Americans were an unfortunate casualty, slavery a necessary evil, prohibition a hiccup, universal emancipation something that had always been anticipated by our incredible revolutionary Founders, the welfare state a betrayal of our own Americanism, segregation a disappointing effect of our inability to live up to our Founders' most glorious moral standards and universal precepts, global capitalism our gift of freedom to all the world so that they could eek out a living off of making cheap jeans).

Would you rather us have been forthright tyrants than hypocrites?

Matt, you're really good at mocking things as "nuts" or "creepy" or "silly caricature," but have not presented one piece of evidence to disprove the understanding of the American natural rights regime that you hate so much. I think you're a professor, but all I see are relativist school-boy rants.

Tony: Discussions on natural rights should take place in classrooms and bars, not blogs (despite how hard some here might try). I'm not sure how we can talk about anything seriously without voice intonation and facial expression - but this just might be a silly nostalgia of mine. I don't mind pointing to Simone Weil's "The Need For Roots" or Bentham's "Critique" of such rights. Actually, for this audience, I'd suggest Burke's "Reflections on the French Revolution" (I forget the exact title, but that's the general idea). But again, to really have a discussion on this stuff would mean moving into real-time and we, unfortunately, can't do that "here".



T-Hag: I'm not suggesting that I know why people died or for what they were fighting. For whatever their own personal reasons, though, they are most certainly taking bullets for "Empire" whether they like it or not. And I share your distrust of "progress." It always seems to me to be more of an escapist rhetoric ("Today blows, tomorrow will be better! No matter what!"). It isn't just the "progressives" who use that, though.



And I'm not sure I see the "forthright tyranny" and "hypocrisy" option you offered as mutually exclusive.

Ooo. I forgot about this book: Uday Mehta's "Liberalism and Empire." Mehta has an incredible grasp of Burke's classical liberalism and hatred of imperialism (and the relationship between those two sentiments).

Matt, I taught my students of government that the wonder of Hammurabi's code was the limit it put on the legal consequences to anyone as punishment. Government could exact no more than an eye for an eye or a tooth for a tooth. It couldn't take your property, your family, your life without your having committed a commensurate crime. This was a limit to tyranny and despotism, and I think that eventually such thinking did lead our great nation, imperfect as it is, as you point out. Any limitation on the rights of the sovereign indicates a recognition of the natural rights of man to life and property.

Standards and principles are valuable to us, as individuals and as a society of individuals. None of the depredations you note from our history would have any meaning nor would we be looking at them as reprehensible if it were not for the Declaration, which says we see those rights as self-evident truth. Failure to live up to high standards is inevitable, because we are human. If we have no standards for the natural rights of man, that invites either tyranny or chaos. I do not with to live with either. Do you?

As an aside, have you ever had someone tell you you are highly intelligent, or even used the word brilliant. Believe it or not, people say such things to my face. It always makes me laugh, because it is ludicrous -- I know myself. However, if true, it does explain a lot about the failures of the human race. Even the intelligent among us are incredibly stupid and only intermittently any use at all. We can all cite the truly brilliant and people who know them well will cite heaps of foolishness to be held against them. They are very fortunate when the sands of time drift over those flaws, blurring or obscuring them. It is the good things they said or did that we repeat, and do not allow to be covered and ignored. Maybe what our Founders said in the Declaration is like that, a collective bit of brilliant goodness that we cannot allow to be obscured by either foolishness or time.

No time for polish. Sorry. It is a busy week.

Kate,



I was going to lay off this thread, but (per usual) I enjoyed your post and it deserves a response.



I think where we disagree is evident here: None of the depredations you note from our history would have any meaning nor would we be looking at them as reprehensible if it were not for the Declaration, which says we see those rights as self-evident truth.



The perceived atrocities of the past are condemnable on many fronts, through many different mediums, and through various worldviews. I think that it is a mistake to utilize the Declaration as the sole moral imperative for the past.



I won't deny that the Declaration is a great document, with ideals that I think can and (I often think) should be implemented throughout our culture. I liked what you had to say about it: about the foolishness that followed its being drafted (much like, perhaps, both of our own occasional clumsy attempts to interpret and apply our own ideological heroes to our own lives and into our own classrooms). But I would argue that to maintain that there is some big-T "true" and universal version of the Declaration (or, for that matter, postmodern theorists) is misguided. It is the "nature" of things that objective wisdom is unattainable, but I certainly don't think that means that the Declaration is not important to our culture and/or should not be read and interpreted by students. This doesn't mean that morality is thrown to the wind. Arguably, one of the central tenets of contemporary literary theory and practice is a celebration of subjectivity and otherness in a very moral sense (see especially Levinas, Habermas, Buber, the Frankfurt School's attempt to grapple with the Holocaust, Peter Winch, Kristeva, de Lauretis, and I could name plenty others).



I suppose that, in the end, it is the unyielding faith in its objective and universal goodness that bothers me regarding Jaffa & Co.'s interpretation of the Declaration.



I wish my week was as busy as yours. It would not be so easy for me to procrastinate on this blog! Heh.

Matt: I see nothing exceptional about philosophers such as Peter Winch. Winch was clever and did a great deal to make one think about things, but...

If you are going to say we can only ever have a mutated understanding of the Declaration because 'its meaning is lost,' that would entail knowledge of its original meaning. Otherwise, doesn't the subjective argument become nonsensical?

I think we differ in that I believe that opinions stem from truth, and one opinion can be better than another based on how close to that truth it is.

I know there are some very nuanced and sophisticated thinkers out there today, but they were reactionary -- something that came about only because of a certain crisis of purpose in Western philosophy. It is only by looking back that we can ever regain any sense of what was.

BTW, you keep referring to it as Jaffa's interpretation, but by no stretch of the mind was it Lincoln's as well. This might be Jaffa's thesis, but it is so evident in Lincoln's own writing that it takes little convincing.

Well, T-Hag, I'm sorry you don't see any lasting value in Winch.



I have no idea how you came to think I thought there was some important original meaning in the Declaration that was "lost." I'm not sure if you're reading too much into my comment on "foolishness" (which doesn't have to presuppose some "lost meaning") or what. In any case, rest assured that I meant no such thing.



I have a hard time believing that anyone (even someone like Lawler) who has read the "sophisticated thinkers" of today could characterize them as solely reactionary. But whatever. It's your story - tell it however you'd like.



And fine. Lincoln was crazy too, then.

Matt, (thank you) no doubt about it, varieties of people have similar moral truths. Honestly, I see no need for the others when America has this one, perfectly good, true, and our very own. Why can't it be our moral imperative? Even within it, there are philosophical premises from the Bible, Locke, Rousseau, all over. It is beautiful. It is a good national creed. When I make my Freshman English comp. students read it (for the first time, usually) they are blown away by it. "Oh. That's what I think." Of course they do. How they get to be 16 - 60 years old without ever reading it is an indictment of our public school system if there ever was one. (No, they do not read the Constitution, either.) What do they read before they get to my class? Not bloody much, a far as I can tell and certainly not any of those books or authors you suggest.

Honestly, for most Americans those seem such a waste of time. If Americans can just grasp the moral sense of the Declaration, that would be something. I can't see asking for more. Even asking Americans to read their own founding documents seems to be asking a lot.

Kate: Now, I've never been in a teaching position but it is sad that you see such malaise. I have heard from plenty others though, and I certainly can attest to my own (limited) experiences that when presented with hard stuff, the task is often happily taken up with a breathe of fresh air. After all, if it is an indictment of our public school system that none of your students have read the Declaration, is it their fault or the schools?

Matt: I think I just got that idea -- that you felt the original meaning was lost -- when you said that there was no big 'T' truth in the Declaration.

I mean, they are reactionary to an extent though. That's not exactly a jab at them, because if things had worked perfectly earlier...you get the point. It isn't that I feel there is no 'lasting value' in Winch, but I do disagree with some of his work. Understanding a Primitive Society for one was very interesting, but isn't there something human that goes above & beyond these paradigmatic fault lines between cultures?

In order to even write the essay, wouldn't Winch himself have had to experienced something of the sort? I mean, it would be nice to hear what you have to say -- not attacking anything, just would like to hear you out.

I will blame schools, parents, and all of America which takes so much for granted, including liberty and our rationale for it. Why should any child be left behind in understanding our founding documents and our government? I have never taught in public high schools, only in private Christian ones where I was in charge of the curriculum and guess what I wanted to talk about? I felt free to start with where we got our natural rights.

Many of the public MS & HS teachers I have met through the Ashbrook seminars teach what ought to be taught. You should hear them talking about how to do that well. It is encouraging. But such programs are dribbling such enhanced teachers into the population. They can't do more.

Our government puts out public service announcements of all sorts. The effort against smoking is particularly massive, and stupid, given government subsidies to tobacco farmers. Perhaps we do not want to have any national discussion or examination of our founding documents, but to create a national consciousness - maybe Lincoln's civic religion - something must be done. Between intellectual America's embrace of ideas like Matt's and the ignorance of the more average American, "we are the world". To maintain a consciousness of American ideals was part of why we decided to have public schools in the first place, for civic education in American ideals. When did that stop being a good idea? Probably Matt could tell us.

Kate in #28 says: Honestly, I see no need for the others when America has this one, perfectly good, true, and our very own. This speaks volumes.

Yes, ren. I meant that sentence to do so.

ren: Thanks for your anti-American blathering of the day! You have contributed so much to the conversation and EXPOSED Kate's true colors! I gasp in horror at her brash and tasteless utterance! Is MoveOn having a slow enough day that you need to troll over here?

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