p. 15-16 The Conservative Foundation of the Liberal Order, Mahoney

Why does Mahoney say that Tocqueville "belongs to an altogether different moral and political universe" than Locke and Hobbes?

(For Hobbes and Locke, human freedom and equality comes from a speculative, pre-political state of nature.)

The third chapter of Tocqueville's The Old Regime and the Revolution is titled "How the French Wanted Reforms before They Wanted Freedoms." In that chapter T. warns that "whoever seeks for anything from freedom but itself is made for slavery." Compare to 2 Peter 2:19.

This is the crux of preaching freedom "because it brings you wealth," or "because it reduces government oppression," or "because _____." Tocqueville's point is that freedom is a goal, and not a means to some other end. To treat freedom as a means to these ends is materialism, not liberty. Liberty = virtue.

See Luther's On Christian Freedom. Luther said that freedom from the Law is not autonomy from the law, but rather freedom from the temptation of sin made clear in the Law, in overwhelming preference for Christ. This is how Luther understood freedom = virtue. This is also much closer to Tocqueville who saw the importance of the church in American freedom that restrained it from a purely self-radicalizing freedom that only sought materialistic ends and the complete autonomy of the individual.

p. 294 A New Birth of Freedom, Jaffa

How is the hierarchy of man's relationships to God and to other men fundamental to the idea that the "powers of government are derived from the consent of the governed"?

Marriage, Carrots, and Redefining Marriage

This post is my attempt to answer libertarian supporters of the redefinition of marriage (or "gay marriage" as its proponents say). Some libertarians maintain a passive support for redefining marriage ("I really don't care") while others maintain a much more active support. The latter will often couch their argument in terms similar to an online comment I ran across recently from a fellow writing as Jeff_84:

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.

p. 151 A New Birth of Freedom, Jaffa

What in the Judeo-Christian tradition did the American South regard as "untranslatable"?

The Audacity of the State, by Douglas Farrow

This drawing is my attempt to sum up this article by Douglas Farrow.

pp. 134-135 A New Birth of Freedom, Jaffa

"It is true that during four centuries, beginning at least with Magna Carta, the organism of parliamentary democracy was slowly being formed within the womb of medieval monarchy. Yet the birth of the institutions of popular government awaited the passing of the divine right of kings and the transfer of the idea of sovereignty from kings to people. It is sufficient here to note that just as one peak of divine right monarchy is reached in the reign of Henry V, so another is reached in the reign of Elizabeth. But as the earlier peak is followed by the War of the Roses, so the second peak is followed, after Shakespeare's death, by another civil war. Cromwell's victory over Charles I appears initially to be a definitive victory of popular sovereignty over the divine right of kings. But Cromwell's republicanism ended in a military dictatorship, which in turn led to a restoration of the British monarchy. It required one more revolution, the Glorious Revolution of 1689, to end once and for all the pretensions of the Stuarts to divine right. But it required the American Revolution to identify the sovereignty of the people with the rule of law, in which the will of the majority can prevail only as it comports with the equal rights of the minority. The seemingly endless series of civil wars in England came to an end only as the divine right of kings was replaced by the God-given right of the people to rule themselves. Unfortunately, one more civil war, the greatest of them all, was required to confirm this right of the people."

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.

Witness by Whittaker Chambers, from the foreward

The crisis of Communism exists to the degree in which it has failed to free the peoples that it rules from God...The crisis of the Western World exists to the degree in which it is indifferent to God.

pp. 121-123 A New Birth of Freedom, Jaffa

Connect the use of the courts in the gay marriage movement, and the natural right of revolution with this statement by Jaffa: "It cannot be emphasized too often that the doctrine of the Declaration requires a people who can appeal truthfully and sincerely to the supreme judge of the world for the rectitude of their intensions."

Personal note: Most political arguments are proxies. Relate Jaffa's quote here to Chambers here.

p. 117 A New Birth of Freedom, Jaffa

What was self-contradictory about James II returning the Church of England to Rome? What aspect of that contradiction led to the overthrow of James, which was decisive for the future of popular government? Also, what is the connection revealed in the American compact between private property and the common belief of "endowed by our Creator..."

pp. 108-109 A New Birth of Freedom, Jaffa

Perhaps the slogan of modern secularists (and there really is no such thing...everyone makes something most important and therefore has a religion) could be "everyone is entitled to their own opinion," and the seemingly infinite variety of opinion is why no Christian or Jew could ever be justified in quoting the Word to justify a position of public policy. How can we argue that such a position upends the a founding principle of the Declaration of Independence?

Quote:

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.


Quote:

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?

p. 75 A New Birth of Freedom, Jaffa

What is first necessary to be a revisionist and declare that the Civil War was unnecessary?

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.

pp. 49-50 A New Birth of Freedom, Jaffa

What are the natural order of wants? What is the connection between rights and wants? Why is property acquisition central to the Founders? Distinguish from libertarianism today. What is the line in the sand separating democracy from the Declaration?

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.

p. 27 A New Birth of Freedom, Jaffa

What did Jefferson mean by happiness?

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.