Friday, August 27, 2010
I think the answer is that, according to Taney/Davis, regardless as to whether you were for or against slavery, if the government restricted Southerners from take their own property into the new territories it could only do so by violating the Constitutional rights of the Southern states (and Taney/Davis saw Constitutional rights as group rights and not so much as individual rights).
Tuesday, August 24, 2010
Davis asks how it was that if Negros were free and equal, King George was denounced in the Declaration for stirring up insurrection among them. The answer, of course, is that freedom and equality are natural rights, not civil rights.
Women didn't have the civil right to vote, but their natural rights were not violated by this.
What was Jefferson's logic with regard to the insurrection discussed in the Declaration? What were the facts on the ground that Jefferson and founders dealt with at the time of the Declaration?
How did Calhoun oppose and contradict Davis with regard to the Declaration of Independence? (Community independence vs. individual human equality.)
p. 205 Lincoln argued that the Union stood in the same relationship to the state as a state to a county, which fits with both Buchanan and Madison. Davis, on the other hand, inherited Calhoun's theory of undivided state sovereignty, which meant that an individual was bound by his promise to his state but not by his promise to the nation.
An argument: Slavery was doomed if left to popular sovereignty (this is the reason Stephen Douglas split the Democratic Party); with the new territories there would eventually be enough votes for a Constitutional Amendment against it. Calhoun understood that the South depended entirely upon favorable rulings in the Courts for slavery's survival, such as that provided by Justice Roger Taney in Dred Scott. This is much like gay marriage today where the gay marriage movement fails whenever it is left to popular vote, but survives only by way of judicial activists in the tradition of Taney.
Monday, August 23, 2010
Sunday, August 22, 2010
Saturday, August 21, 2010
[For the Southern states] the means for the preservation of the Union...is of a very thin and airy character...In their view, the Union, as a family relation, would not be anything like a regular marriage at all, but only a sort of free-love arrangement, to be maintained by what that sect calls passionate attraction.
Calhoun did not believe the Union was a contract that states could enter and leave as they please, but he saw nullification and possible succession (failing nullification) as the proper route.
The marriage analogy is similar to Douglas' popular sovereignty argument that Buchanan rejected. Buchanan believed in the 'positive good' of slavery, and that if all the states did not recognize slavery as a 'positive good' then that would justify succession.
Buchannan believed the South could justify resistance on the basis of the natural law of self preservation, but he could "see no justification for resistance to slavery." p. 185. Under slavery, the positive law denied the slave the right to defend himself against the theft of his property in the fruit of his labor and the violence to his person that might be committed with impunity by his master. But the sovereign rights to life, liberty, and property are inseparable from one's being." p. 184
Leftists support big government in all walks of life, which means that they have a lot more in common with social conservatives than social liberals.
It is easy to follow the train of thought here. Jeff_84 sees prohibitions against redefining marriage as the imposition of government or the church over just letting people do whatever it is they want to do. In other words, redefining marriage = less government.
Leftists may “support big government in all walks of life,” but what does Jeff_84 make of the overwhelming support for redefining marriage among those who identify themselves as left wing? I will argue that support for redefining marriage is consistent with the larger, more powerful central government espoused by America's political Left, and that Jeff_84's redefining marriage = less government equation makes an unavoidable contradiction.
Below I will make the following arguments: 1) The totalitarian state needn't restrict the freedoms of its citizens; it only needs citizens to understand the state as the origin, arbiter, and distributor of those freedoms; 2) The permissions to do as we wish does not equate to liberty; 3) Marriage is a natural right and for the government to usurp natural rights as permissions equates to totalitarianism; 4) Finally, proponents of redefining marriage typically frame their arguments by stating that they only want to make traditional marriage inclusive of gay couples. I will argue that this is not possible, and that therefore the movement to redefine marriage is ultimately a rejection of marriage as a natural right.
This argument might sound like academic cocktail conversation, but it's also behind the confrontation at the town hall meeting in the video below. The woman in this video has crafted a careful and persuasive argument (based on the reaction of the crowd anyway) asking about the limits of government power. Congressman Peter Stark (D., California) answers that there are no limits. The difference between the two sides comes down to our natural rights. Natural rights are unalienable rights because they are endowed to us by our Creator and exist before or after any government. The belief in natural rights means that our government is powerless to give or take away our right to life, for instance, because that right was endowed to all men by our Creator. That's what Jefferson meant by "unalienable." On the other hand, if there are no such things as endowed natural rights, then government has not just power but total authority. Then, as Congressman Stark argues, nothing limits government's reach:
WHAT TOTALITARIANISM ISN’T
Limited government exists only insofar as the strength of the constraints placed upon it. What are the constraints that limit our government? What ultimately separates our limited government from European governments and totalitarian states?
What makes governments totalitarian has nothing to do with what it allows its citizens to do. There is no reason why a totalitarian government can’t issue an endless menu of freedoms to its citizens sufficient to make the United States look like Cotton Mather’s Massachusetts by comparison. (Actually, Puritans aren't a bad example because they sought America’s shores so that they could have the freedom to live in a community that was more restrictive than how the state permitted them to live in England.) It is only when a citizenry sees its natural rights as emanating from the government that the government’s power has become total. This was exactly Whittaker Chambers' point when he wrote that "the crisis of Communism exists to the degree in which it has failed to free the peoples it rules from God...the crisis of the Western world exists to the degree in which it is indifferent to God."
The great totalitarian bargain asks citizens to put liberty before Truth (and natural rights) and in exchange our modern totalitarians promise us the right to do whatever we want (and more recently to have whatever we want), so long as we understand that the state is the ultimate distributor of those rights.
The Jeffersonian rejection of the totalitarian bargain is contained within the Declaration of Independence, and states that our freedoms are natural rights, endowed to us by our Creator. Not only can the government not distribute rights endowed to us by our Creator, the declaration and understanding of our natural rights has always acted as a chain that binds our government and restrains its avarice for ever more power. In the thinking of Jefferson, Madison and Lincoln, it is when our government breaks free of those restraints that our citizens should invoke their right to revolution.
THE AMERICAN CIVIL WAR: NATURAL RIGHTS V. DETERMINED RIGHTS
In the run up to the Civil War, very few Americans owned slaves, and perhaps fewer yet felt the plight of the slaves themselves was a cause worth dying for. Certainly Lincoln never attempted to make sentimental appeals to the sufferings of southern blacks. And yet over 600,000 men sacrificed their lives in the fight over slavery. What was this all about?
Throughout the Lincoln-Douglas debates and in the run up to the election of 1860 and the war that followed, Lincoln turned most often to the words of the Declaration of Independence declaring that “all men are endowed by their creator with certain unalienable rights.” Lincoln argued that this principle above all else is what constrains the American government from assuming absolute power. If the government can determine that a black man is without rights, Lincoln argued, it had the authority to enslave any of us. On the other hand, if our rights are endowed to us by God, and if our government is constrained by that principle, limited government cannot countenance disregard or indifference toward that constraint.
Positive law simply means law written by men. It’s important to remember that unlike the Constitution and the Bill of Rights, the Declaration of Independence is not positive law. Neither is it a government document--it is pre-governmental. The Truth declared in that document, if true, exists with or without the document itself. It is precisely because of these facts that the Declaration became a line in the sand for Lincoln--and his roadmap to war--because its Truth is not at the mercy of any government.
Unlike all other issues facing our government since its founding, the Southern defense of slavery demanded that government, by its own power, should determine which men have the rights to life and liberty and then distribute those right accordingly. Or to put it another way, the Southern defense of slavery demanded that we unchain our government from the Truth of unalienable rights in exchange for government determined and distributed rights.
Like other unalienable rights, marriage is pre-governmental and the building block of life, family, and civilization itself. To quote Father Juan Velez, “Defenders of true marriage often have trouble defending the obvious precisely because it is self-evident and defies sound bites.” For that reason we must now review how marriage came to exist.
WITHOUT PROCREATION, MARRIAGE WOULDN'T EXIST
First, a basic point: marriage came into existence because men and women procreate children. (Until a handful of years ago when the term "gay marriage" first arrived on the scene, I would have gotten either laughs or strange looks for pointing this out. I might as well say "night is darker than day!" Or more to the point, I might stand on a soap box and declare that I was born of a woman’s womb. And yet to Fr. Velez’s point, it is precisely because we hold certain Truths to be self-evident that we see fit to neglect them, and therefore we leave whatever is most self-evidentially true as most open to attack.)
Let me quote Douglas Farrow on this point, writing here on a decision by the Canadian Supreme Court sanctioning the redefinition of marriage:
"...Does the court really expect us to believe that 'the union of a man and a woman' or 'the voluntary union of one man and one woman' were never anything more than narrow-minded variants of 'the union of this person and that person'? That biology and reproduction were, so to say, Catholic or Puritan additions to the concept of marriage? ...Instead [Canada’s court] questioned the phrase 'one man and one woman' on the spurious grounds that this phrase meant nothing more than 'two persons' all along. Who knew?"
Let's agree that for the government to legally redefine marriage, it is necessary for marriage to exist in the first place. For that reason it is necessary to ponder why the institution of marriage came into existence.
Imagine for a moment that human beings grew magically out of the ground like carrots, but without the need for sexual procreation. No mothers, no fathers, no children, no biological families--just people, completely free to do whatever they want. For what reason would two people (man-to-man or man-to-woman) create an institution declaring their mutually exclusive fondness for one another? For that matter, why would the relationship revolve around two people instead of three, or six, or why would the number matter at all? And why would we define that fondness based on some random physical activity, such as rubbing elbows together? And even if for some reason a few people in this imaginary world did do such a thing, why would anyone notice? Why would word even spread of such an inconsequential thing? Furthermore, why on earth would the government have any interest in such an entirely inconsequential, weird exercise?
My point here is that marriage only came into existence because sexual procreation is the inescapable biological necessity for the existence of mothers, fathers, children, families, and civilization. The government did not create marriage and the natural family, but rather these pre-governmental institutions are the building blocks of the civilization that our government was created to protect.
The typical counter-argument that "some couples won't or can't procreate children" was no less true at the dawn of civilization as it is today, and therefore the argument is no more relevant today than it was then. A man and a woman might marry only to discover that they cannot procreate, but that unfortunate fact does not change the procreative nature of marriage.
In most cases when we discuss the redefinition of marriage we leap right over this basic point and start debating future consequences not realizing the overwhelming assumptions we have to make to even start that debate. When we ask “should we include gay couples in this thing called marriage?” we don’t even know what we are asking. We might as well ask “should ‘men’ be included in this thing we call ‘women’?” Sure, we can collectively decide that henceforth all people will be known as “women,” but since we will still be left with two different sexes all we will have done is to render the word “woman” meaningless. Likewise, since it is not possible to include gay couples in the institution of marriage, the real debate we’re having--and we don’t even know it--is whether the U.S. government should end or at least redefine on its own terms the natural right of marriage.
Paula Ettelbrick, Executive Director of the International Gay & Lesbian Human Rights Commission, stated a clear understanding of this point in her article “Since when is Marriage a Path to Liberation?”:
...being queer is more than setting up house, sleeping with a person of the same gender, and seeking state approval for doing so...Being queer means pushing the parameters of sex, sexuality, and family, and in the process, transforming the very fabric of society...We must keep our eyes on the goal...of radically reordering society’s view of reality.
In similar form gay activist and talk radio host Michelangelo Signorile argued that the best plan “might be to fight for same-sex marriage and its benefits and then, once granted, [to] redefine the institution of marriage completely”; that is, “to demand the right to marry not as a way of adhering to society’s moral codes, but rather to debunk a myth and radically alter an archaic institution that as it now stands keeps us down.”
There is nothing remotely shocking or even controversial about what Ettelbrick or Signorile are saying. They understand (and figured it out much more quickly than I ever did) that this debate can’t possibly be about inclusion. Agree or disagree, the fight is over the “reordering of society’s view of reality” beginning with the idea of marriage as a natural right.
Well so what to all of this, right? If that’s how me, Ettlelbrick and Signorile see it, fine, but what does it have to do with the rest of us?
Opponents of redefining marriage are right to focus on the weak Constitutional reasoning of various judges who have ruled in favor of redefinition, and this is where I hope Libertarian proponents of redefining marriage would listen closely. In every case these jurists have loosened the chains that bind limited government by assuming arbitrary control of the terms of family and natural right. Those decisions will eventually make their way to the U.S. Supreme Court where it will finally be decided whether family remains a chain that restrains our government or whether our government has broken free of this restraints and can now even define the terms of the institutions it was created to protect.
NO SOCIETY CAN REDEFINE MARRIAGE WITHOUT FIRST MAKING THE GOVERNMENT THE ARBITER OF A NATURAL RIGHT.
Limited government cannot define the terms of the institutions that limit it and that which it was created to protect. Once it successfully does so it ceases to exist as limited government.
To repeat, the government cannot create the idea of gay marriage without natural marriage existing first, and marriage itself only came into existence because men and women procreate children. So what does this tell us? It tells us that gay marriage by definition cannot possibly be about including gay couples in the institution we know as marriage because no matter how hard our judges try, they cannot include gay couples in procreative sex.
Since gay couples cannot be included in marriage, that means the goal of the gay marriage movement is for the government to reject the idea of marriage as a natural right, and then to recreate marriage by government as positive law.
The government's fight to define the terms of marriage and family is no new thing. Jean-Jacques Rousseau explained why the power of the government is at the mercy of how we define marriage. Arguing for state control of marriage and the benefits of a “nation of bastards” in The Social Contract IV.8, Rousseau said,
Marriage, for instance, being a civil contract, has civil consequences; and without them it is impossible for society even to subsist. ...is it not obvious that by establishing the authority of the Church in this matter, they will render that of the Prince null, and create a situation in which the Prince will have as subjects, only such as the clergy shall see fit to give him? The church [will become] the sole controller of inheritances, offices, citizens, and the State itself, which could not continue where it composed only of bastards.
In a similar attempt to secure government control over marriage as positive law rather than natural right, the Iowa Supreme Court in a 2009 ruling declared the state's marriage protection law unconstitutional because in part, the court found, a child's need for a mother and a father was based on nothing more than "stereotype."
And so even though not a single justice on the Iowa Supreme Court had even heard the term "gay marriage" until a handful of years prior, the court went on to argue that suddenly in 2009, unless the state of Iowa immediately rid itself of the mother-father family stereotype and redefined marriage it would violate equal protection clause of the 14th amendment of the U.S. Constitution, written in 1868.
The court's reasoning on this matter is nothing short of Alice in Wonderland. Take a look at two key excerpts from the court's decision:
(1) “[E]qual protection can only be defined by the standards of each generation.” (p. 16)
Putting aside the echos of Justice Roger Taney in the court's premise, if the court wants to determine the standards of the current generation you would think the justices would have referred to Iowa's law defending natural marriage that was adopted in 1998 amidst great popular appeal. But as Ed Whelan pointed out, you'd be wrong.
(2) “The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.” (pp. 16-17)
To quote Ed Whelan, "what goobledygook." If libertarian supporters of redefining marriage are okay with judicial activism on this scale, then they've lost all basis for arguing that what they seek is a Constitutionally constrained government. What they've really signed up for is the end of natural rights and therefore unrestrained government reach, at least so as long as that reach corresponds with the momentary fashion of their personal likes and dislikes. As they say, good luck with that. I think it is sufficient to stop there, but let me tease this out a little more.
The idea that redefining marriage cuts the chains that restrain our state might cause some to roll their eyes, just as Justice O'Connor in her concurring opinion in Lawrence v. Texas rolled her eyes at the idea that the court's decision could ever be used to impose same sex marriage at the state level. Only five months later The Massachusetts Supreme Court used Lawrence to do exactly that.
Throughout the history of this country the primacy of marriage and family have shaped our laws and constrained our government. For instance, if a married couple with children dies without a will, their estate transfers to their children. Kings, Queens and totalitarians might have a strong interest in having the estate transfered to their coffers, but at least in the United States the natural family unit has always held sway and constrained a more rapacious state.
Every totalitarian philosophy of the past hundred years or so from Marx, to Freud, to Rousseau, to the Kulturkampf has argued that the state needs to redefine the terms of marriage and family, rather than to let those definitions retain a primacy that stands sacrosanct outside and above the state. They do this because marriage is understood as a natural right, and as Whittaker Chambers expressed above, natural rights endowed to us by God are the sine qua non of limited government.
When our government reaches for a natural right it yanks on the chains that limit its power, as natural rights are the only restraints that preserve limited government. I hope all libertarians--both gay and straight--will consider the consequences of cutting our government free of those restraints.
Saturday, August 14, 2010
"Yet there is something more going on here than a decadent, libertine capitalism can account for, even one that is greedily trying to digest various indigestible bits of mutated Marxism."
"If marriage were merely a publicly recognized close personal relationship between two adults, then an argument might be made that it violates equality rights to insist arbitrarily that the adults in question be of opposite sex."
Why do we have laws dealing with consanguinity and minimum age and polygamy?
p. 23 In what sense can we say that marriage as a concept and as an institution for state involvement makes no sense in a gay marriage context?
p. 23 Explain how the Ontario Supreme Court reasoned from 1) finding marriage discriminatory, to 2) It's actually being discriminatory once it stripped marriage of having anything to do with procreation.
footnote p. 35: "Marriage, it is said, is an intimate relationship between adults. Jill and Jane are intimate adults. Therefore Jill and Jane must be allowed to marry or their rights will be violated. And what prevents them from marrying? The common-law definition. Conclusion? We must change the definition. And to what will we change it? Well, to 'a union of two persons' -- that is to an intimate relationship between adults. If the Supreme Court is looking for tautology, there it is! And if this dishonest argumentation, which takes its conclusion as a premise, is not acknowledged as such and rooted out, the integrity of the law will certainly be the next casualty of same-sex 'marriage.'"
"...it offers a radically different account of the nature and function of marriage, and so also the politics of marriage."
Read from the highlight here to the end of the paragraph.
Thursday, August 12, 2010
What began to bother me, privately, was that, as things grew better, the empire of the needy seemed to grow larger. Somehow, they became entitled to government gifts other people couldn't get, such as people who worked. Yet, I remained a loyal liberal. I lived in Cambridge, Massachusetts, the home of liberalism. I spoke at liberal banquets in New York, Los Angeles, Washington. One day a lady photographer came to my studio and showed me a collection of Boston photographs. A publisher would publish them if only I would rattle off the captions. She had brought a tape recorder. Well, one doesn't turn down a lady liberal. The pictures were funny. My captions tried to be. And then we came to the last one. This one, she said, will break your heart. She showed me a picture of a city street. Garbage cans were tipped on the sidewalk. Bottles lined the gutters. On a porch sprawled a half dozen teenagers, drinking and smoking. The caption, I said, should be, "Get up off your asses and clean up your street!" The lady stormed out. I guess that was when I began leaving what liberalism had become.
My politics didn't change. I had always been for those who were despised, disgraced, an denounced by other people. That was what had changed. Suddenly it was the poor working bastard who was being denounced. He had always worked, his wife had always worked, his kids worked. At some point they bought a house in the suburbs. It was from his paycheck that the billions for welfare came. He never complained about it. But why were the others complaining about him? He was never a silent generation; he was a bewildered one. I knew that it would be terribly unsmart to say anything in his defense. But I knew that if I remained silent, I would die as a satirist. A satirist has only one gift: he sees where the fraud and fakery are. I turned around and let the other side have it.
It's been an exhilarating forty-three years.
Lincoln at Cooper Institute, February 1860: "These natural and apparently adequate means all failing, what will convince them? This, and this only: cease to call slavery wrong, and join them in calling it right."
See also "untranslatable" on p. 151.
Wednesday, August 11, 2010
"...according to Davis, the equality proclaimed therein was one of communities, not individuals."
"...When the slavery question took on the dimensions of a religious question, the entire experiment in free government was thereby at risk." P. 155
Tuesday, August 10, 2010
Personal note: Note that without "the God-given right of the people" our rights are strictly a matter of positive law--bestowed on us by the government as by Cromwell--and therefore a strictly Hegelian system of government. Had we split into two nations and never fought the Civil War, and even if the South had outlawed slavery on its own, it would have meant a capitulation to the idea that our rights only come from the government. And it would have meant that for the North as much as the South.
Personal note II: The election of 1800 was the first to witness the peaceful effects of this system of government, and the Civil War preserved not just the Union but our God-given rights.
."..True criticism is never armed. Marxism lost in truth what it gained in power when it gained power over the Russians."
Personal note: relate to Matthew 22:17-22
Sunday, August 8, 2010
Personal note: Most political arguments are proxies. Relate Jaffa's quote here to Chambers here.
How can we say that men's interests generate their opinions when some men, at least, decide what their interests are only after they have decided what those interests ought to be? One of the conspicuous features of the Declaration of Independence is the appeal of its Signers "to the supreme judge of the world for the rectitude of our intentions." Becker would have us believe that they were either deluded or insincere.
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1791-1794). Kindle Edition.
Can we not then ask whether some human beings differ in nature from others in such degree or kind as to make their slavery just, whether they consent to it or not?" This at bottom is the question that Carl Becker declares is meaningless, and it is this question we must be prepared to answer.
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1811-1813). Kindle Edition.
Carl Becker declares such questions meaningless because at root, he says, are ulterior motives or interests. If Becker is correct for the majority of people, what difference does it make if a leader like Lincoln believes otherwise?
Quote at beginning of chapter:
To ask whether the natural rights philosophy of the Declaration of Independence is true or false is essentially a meaningless question. -Carl Becker
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1231-1232). Kindle Edition.
He [Becker] fell into the same fatal dualism that has characterized all the descendants of that first of modern philosophers, the Cretan who said that all Cretans are liars!
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1621-1622). Kindle Edition.
What deserves particular notice in Becker's summary of Darwinism is the twofold denial, first, of any fundamental distinction between natural history and human history, and, second, of any fundamental distinction between force and right. Thus: "In a universe in which man seemed only a chance deposit on the surface of the world, and the social forces no more than a resolution of blind force, the `right' and the `fact' were indeed indistinguishable; in such a universe the rights which nature gave to man were easily thought of as measured by the power he could exert."35
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1625-1629). Kindle Edition.
What Becker writes here constitutes as well an endorsement of Calhoun's theory of the concurrent majority, by which only those minorities that are powerful enough to obstruct the will of the majority are entitled to the veto power.
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1631-1632). Kindle Edition.
Atheistic nihilism transforms the "bourgeois" and highly moral individualism of the American Revolution into something entirely different. That older individualism was based on the idea of unalienable rights endowed by man's Creator. Such rights were not unconditional. They were to be exercised only in accordance with the laws of nature and of nature's God, which were moral laws. Rights and duties were in a reciprocal relationship. But the nature revealed by modern science-the unconditional basis of the belief in Progress-was that of mindless matter, a source of power to be commanded, not a source of morality to be obeyed. From here on, "rights" would be understood as the unconditional empowerment of the individual to do as he pleased. Self-realization became the code word for the new morality. The human self, however, was no longer understood to be made in the image of God, since God was dead. Self-realization was in fact only the correlate of the new atheism. As there could no longer be any distinction between man and God, which distinction is as fundamental to the Declaration of Independence as to the Bible, there could be no distinction between base and noble desires. All desires were understood to be created equal, since all desires were seen as originating in that highest of all authorities, the self-creating self.
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1589-1597). Kindle Edition.
As these doctrines were filtered through the intellectual establishment of modem liberal regimes, of which Chief Justice Rehnquist is a typical representative, the emancipation from morality was itself seen as moral progress, and the opponents of that emancipation were seen as the reactionary enemies of both freedom and morality.
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1598-1600). Kindle Edition.
[Also consider the following from page 50:]
This moreover is the same compact that Madison, throughout his life, declared to be "the vital principle of free government." From this account we see that a free election, properly so called, can only decide questions for a people united by the terms of such a compact. No election, however free, can rightfully decide questions "beyond the legitimate reach of sovereignty, wherever vested or however viewed." Nor can even unanimous consent rightfully authorize what is inconsistent with the "great principles of right and wrong." But suppose differences of opinion arise as to whether policies or institutions are, or are not, beyond "the legitimate reach of sovereignty,"
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 885-889). Kindle Edition.
[PERSONAL NOTE: the necessary question is what constitutes that limit? The Declaration of Indepenence drew that line with those things that belong to God. Here it is worth referring to R.L. Bruckberger's Image of America:
"To abolish divine right in politics--and this is where Congress got it right and Jefferson got it wrong--it is not enough merely to give the people full sovereignty. It must also be recognized that men's inalienable rights, upon which their sovereignty is based, is derived from God, Creator, Providence, and Judge. It is true that the people have rights, and that those rights are imprescriptible and inalienable; but not every right is theirs. THEY HAVE NO RIGHT TO DEIFY THEMSELVES. Since their rights derive from God, they can exercise them only according to God's will. In their very sovereignty the people are subject to God. Without religion even democracy is exposed to all the perils of tyranny. The American Declaration carefully avoided making a philosophical absolute of the people; it did not give the people precedence over God in the chain of succession; it maintained the traditional chain of succession and traced back men's imprescriptible rights to God, the source of all justice and all rights.
...In this chain of political sovereignty the people are always subject and at the same time always free and sovereign. They are subject to their own laws and to God's justice. They are free because they obey only their own laws. They are sovereign because their sovereignty is part of the sovereignty of God.
--Image of America pp. 103-104]
C.S. Lewis explains here why subjectivism about values is eternally incompatible with democracy.
Also consider page 39 here.
Relevant Passages: Calhoun's principle of the "concurrent majority"-by which certain minorities are given a veto power over actions of the government-is likewise said to transform factional strife in society into harmony and mutual advantage. As presented by Calhoun, it neutralizes and brings into unity the otherwise uncontrollable conflicts of interests, in much the same way that the abolition of private property is thought to do by Marx.
Hegel's "cunning of history," by which the rational ends of human civilization were supposedly advanced without any rational foreknowledge of those ends by the makers of the great events of history, was the tacit ground of the optimism equally of Calhoun and of Marx. Both, like Hegel, believed that they looked back upon the course of human history and were able to descry therein a rational purposefulness of which even philosophers had not hitherto been aware. They believed this was possible because, unlike their predecessors, they lived in proximity to that absolute moment when the purpose of all previous history would stand revealed. Because of this, they could be rational or scientific concerning the actions necessary to promote the completion of the historical process, and thereby the human good, as none of their predecessors could have been.
The idea of progress led Hegel, Marx, and Calhoun radically to depreciate the role of reason in all of their predecessors, whether statesmen or philosophers, to none of whom the rationality of history itself had been vouchsafed.33 Reason was truly manifest only in the absolute moment wherein history as progress was revealed. The scope and importance of reason as a means of access to truth, or of guiding human life toward human fulfillment, was thereby immeasurably degraded, except within the infinitesimal boundaries of the absolute moment. But questions were inevitably raised about that moment. By what right had the historical school exempted itself from the relativism that it attributed to everyone else?
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1572-1580). Kindle Edition.
Relevant Passages: The historical school rejected Aristotle's best regime for the same reason that it had rejected natural rights-because it represented a nonhistorical judgment concerning the human condition. Aristotle, like Jefferson and Lincoln, believed that fundamental principles were timeless and placeless, which meant that they existed outside of history.
The historical school saw no need for a doctrine of the best regime, because it was confident that the historical process itself was essentially a controlled movement toward an ever more perfect human condition. In essence, this meant that the best regime was intrinsic to the historical process. It might in fact be called "the end of history," implying both senses of the word "end"-the termination of a series of events and the ultimate fulfillment of a purpose.
Personal note: Milton Friedman is also susceptible to the historical school. When Peter Robinson asked him on Uncommon Knowledge why he was always so optimistic, Friedman responded saying that each decade is better than the one that preceded it and he had no doubt that the spread of free commerce would make that continue.
Calhoun accepted Hegel's belief that history is the unfolding of the mind of God. Belief in progress thereby came to be the essence of piety. For Calhoun, as for most of his contemporaries, the conquest of nature by modern science, making the laws of the material world subservient to human use, became the supreme manifestation of God's goodness. It became the heart of their Christianity, or of revealed religion generally. But the same facts that were the ground of Calhoun's piety were the ground of Karl Marx's atheism.30 The "high intellectual faculties" with which God had endowed man, according to Calhoun, and with which he was accomplishing the conquest of nature were the very reason why, according to Marx, God had become superfluous.
Harry Jaffa. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Kindle Locations 1538-1542). Kindle Edition.
While Calhoun would thank God for the ever increasing benefits resulting from the application of scientific methods to human needs, Marx would point out that men's prayers were being answered by relying on the use of their own unassisted human reason. Science could then be seen either as God's means of answering men's prayers or as the true reality that the idea of God had only obscured. As the nineteenth century progressed, as the prestige of science grew and scientific discoveries seemed more and more to he the answers to men's prayers, the presence of God seemed to become ever more identical with the presence of Science.
Saturday, August 7, 2010
Relevant Passages: Rehnquist's "original intent" has less in common with the intent of those who ratified the Constitution than with the intent of those who "dc-ratified" it in 1860-61. The Civil War was fought between two different conceptions of what constituted the "original intent" of the framers and ratifiers.
The heart of the Southern understanding of the Constitution consisted in the denial that any moral distinction could he drawn between the safeguards of individual liberty in the Constitution and the safeguards of slavery. By their account, all part', of the Constitution were of equal moral, no less than of equal legal, obligation.
Rehnquist's views are very different. For him, intrinsic worth as a concept has no foundation in reason. If safeguards of liberty have no such worth, then neither has liberty itself, or even life. In Rehnquist, we can observe that historical right has been transformed into unmitigated positivism or indeed into nihilism. He accounts for constitutional morality by saying that constitutional safeguards "take on a generalized moral rightness or goodness" when they "assume a general social acceptance."
Relevant Passages: They were certain that from the abolitionists to the advocates of the positive good of slavery, those who asserted a ground of truth for their moral preferences were laboring under delusions. They therefore condemned, whether explicitly or implicitly, those politicians on either side of the Mason and Dixon Line who inflamed the uncompromisable moral passions of the electorate.
They were convinced that they knew, as Lincoln and his fellow citizens did not, that to ask whether slavery was right or wrong was to ask, in the words of Carl Becker, an "essentially meaningless question."
The answer is that in our time, truth has been disarmed by the opinion that reason is impotent to know what is just or unjust, right or wrong, true or false.
Relevant Passages: The earlier revisionists, whose hero was Stephen A. Douglas, thought that sensible statesmanship would always work for the subordination of moral questions to matters of interests, and consequently for the peaceful accommodation of conflicting interests. In this respect, they preserved something of the rationalist tradition they otherwise rejected.
Their successors, however, have substituted commitment for reasonableness (in any sense of that word) as the norm by which human actions are to he judged. Our latter-day writers, who generally detest Douglas, are by and large committed to the moral superiority of the antislavery cause. For them, the impotence of reason to decide moral questions does not mean, as the earlier revisionists concluded, that moral questions should be ignored, bypassed, or compromised. It means rather that a full-blooded and passionate commitment should he made to the position one regards as moral. Since reason cannot speak against their moral commitment, there is no reason for them to moderate their passionate feelings about slavery.
They have much in common with Chief Justice Roger Taney, who in the Dred Scott decision of 1857, declared that the Signers of the Declaration of Independence could not have regarded slavery as wrong, since they did not abolish it-ignoring the fact that, in any event, they had no power to abolish it! For such historians as these, the portrayal of a "racist" American Founding is a necessary preamble to the disavowal of any authority to the principles of the Revolution, notably those enshrined in the Declaration.
Relevant Passage: Revisionist historians thus approached the Civil War convinced a priori that they understood the questions facing the American people of that period better than Lincoln or any of his contemporaries. They were convinced that they knew, as Lincoln and his fellow citizens did not, that to ask whether slavery was right or wrong was to ask, in the words of Carl Becker, an "essentially meaningless question." And they concluded that to go to war over a difference of opinion that could not be settled by any rational means was essentially foolish.
relevant Passage: Aristotle will prove by his analyses that no regime exists, either in speech or in deed, that deserves to be called best. Lacking such a model of excellence, there cannot be political science, properly so called. Aristotle, the son of a physician, believed that a genuine political science must be able to distinguish between political health and disease as much as medical science must be able to distinguish between bodily health and disease.
Relevant Passage: Henceforth, the kinds of differences that appeared in the debates over ratification reappeared as differences over the interpretation of the Constitution and in that way contributed to the rise of parties. Jefferson speaks as follows of this world-historical event of 1800: During the contest of opinion through which we have passed, the animation of discussion and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the Constitution, all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good.
Relevant Passage: These acts were followed by the resolutions of the Kentucky and Virginia legislatures in November and December of the same year, and a further resolution adopted in Kentucky in February 1799. These protests presented the already familiar argument about strict construction as a constitutional requirement of the Tenth Amendment. They also introduced, as a necessary inference from the doctrine of strict construction, a theory of civil liberty as the ground of the legitimacy of the political process. If we understand the Kentucky and Virginia Resolutions as Jefferson and Madison understood them at the time, the defense of state rights and the defense of civil liberty formed part of a single argument. Looked at in the light of nearly two centuries, however, they stand at the headwaters of two divergent trends in American political and constitutional history. The defense of state rights against "numerical majoritarianism" and the "tyranny of the majority" became in time a defense of slavery and, after that, of Jim Crow. Paradoxical as it may be, in its association with "state rights," the argument against "tyranny" became the argument for "despotism," notwithstanding the fact that these two words at bottom mean the same thing. For Jefferson and Madison, however, the rights of the states, as of all legitimate civil societies, were grounded in the natural rights of individuals, as proclaimed in the Declaration of Independence and the bills of rights of the states. The rights of the states and the condemnation of slavery were part of the same doctrine. To understand the election of 1800, we must not read back into it the opposition between state rights and civil liberties that may be said to have begun (as Lincoln saw it) in the nullification crisis of 1828 to 1833.
Relevant Passage: Yet the Anti-Federalists saw the proposed Constitution as an encroachment upon the rights of the states and the people, while the Federalists saw it as a means for rectifying the weaknesses of a government radically inadequate for securing those same rights.
Relevant Passages: It is important to understand "rights" and "wants" as two aspects of a single phenomenon.
That all men are by nature equally free and independent, and have certain rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
To say that someone has a right to life is to say that he has a natural desire or want to preserve his life. All rightful authority is founded upon recognition of this desire or want as a right, and no authority can be rightful that does not recognize it and is not consistent with it. The right to life would be worthless, however, for someone without the liberty to acquire the means-that is to say, property-by which to defend and preserve it. And the right to acquire property would mean very little unless it resulted in secure possession. But life, liberty, and property together are not ends in themselves. In the Virginia and Massachusetts Bills of Rights, as in the Declaration, safety is the first of the ends or purposes of political life, but happiness is the end for which life, liberty, and property are wanted.
Relevant Passage: Jefferson appeals throughout the Kentucky Resolutions to the principles of "compact," the Constitution itself being a particular compact."' The idea of compact is at the heart of American constitutionalism. It is at the heart of the philosophical statesmanship that made the Revolution, of which the Constitution is the fruit." In the most fundamental respect, compact is an inference from the proposition "that all men are created equal." If men were by nature unequal-that is to say, if some were horn with saddles on their hacks, and others booted and spurred-then it would be naturally right for those with the boots and spurs to ride those with the saddles. It is because there is no such inequality within the human species that legitimate government arises from compact or consent. In 1860-61, the "seceding" states also referred to the Constitution as a compact. From their peculiar understanding of its meaning, they found justification, not only for slavery, but also for their withdrawal from the Union. That understanding differed fundamentally from Madison's and Jefferson's, in that it severed the connection between human equality and the requirement of consent. They might consistently, even if erroneously, have denied both equality and consent; but they could not consistently demand the benefit of being ruled only by their own consent while denying that other human beings shared in that human nature that is the original and necessary justification for the requirement of consent. It is therefore of the highest importance that we understand the term "compact" as an expression of the doctrine of the Declaration of Independence and as the essence of the philosophical and constitutional statesmanship of the Revolution. This is the sense in which Jefferson and Madison understood it in 1798-99, a very different sense from that in which it was used by South Carolina and her spokesmen in the debates surrounding nullification and secession from circa 1831 to 1861.
Relevant Passage: But the "public happiness" of which Jefferson speaks in the Summary View is an expression of the social nature of these same individuals. Individual rights become valuable only insofar as they result in a good society-a society in which man's moral and intellectual virtues can find their fullest measure of opportunity.
Relevant Passages: But for Jefferson, no less than for Aristotle, what men seek by nature is not the ancestral but the good. After all, neither the Saxon ancestors of present-day Britons nor the British ancestors of present-day Americans left their native lands for any other reason than to better themselves. And therefore no claim or idea of right carries any intrinsic authority if it is contrary to the reason of natural right.
"Nor was ever any claim of superiority or dependence asserted over them by that mother country from which they had migrated: and were such a claim made, it is believed his Majesty's subjects in Great Britain have too firm a feeling of their rights derived to them from their ancestors, to bow down their state before such visionary pretensions. And it is thought that no circumstance has occurred to distinguish, materially, the British from the Saxon emigration. America was conquered, and her settlements made and firmly established, at the expense of individuals, and not of the British public. Their own blood was spilt in acquiring lands for their settlement, their own fortunes expended in making that settlement effectual. For themselves they fought, for themselves they conquered, and for themselves alone they have a right to hold."
Answer: With the Restoration, England was determined to keep the powers of the purse and the sword separated. It was in the aftermath of Cromwell that purchase of military commissions was instituted. This seemingly irrational practice (which lasted until after the Crimean War) served to assure the country that the officer class would be drawn from the propertied class and would not consist of adventurers who might expect their fortunes from the booty of the conquests of their commander-whether that commander was a popular leader like Cromwell or a hereditary monarch. (The British experience explains why the president of the United States, as commander in chief, must be a civilian and why all appointments to the higher ranks of the armed services must be consented to by the Senate. This consent is the American equivalent of purchase.)