The Constitution, by contrast, has a beginning and an end. It began as a replacement for an earlier attempt to build a government coherent with the aims of the Declaration, and it will end when the government it created finally fails the Declaration's test.
That is not the only opinion, however. Barack Obama thinks the Declaration is irrelevant, and that eternal truths are undesirable.
Barack Obama treats that claim with a certain condescending dismissiveness. “The great thing about America,” he said, “is that our institutions do not rest in any claim to an absolute truth.” With a wink, he says that we all know now that all men are created equal was not really a moral truth. And yet this was important for Obama to denounce the hypocrisy of the Founders, such as Jefferson, Washington, Madison, who owned slaves. But wait, if all men are created equal was not a fact, a moral truth, then there was no moral wrongness in making slaves of other men. Then what was the problem, that the Founders have been inconsistent?
That quote is from an edifying debate hosted by the Federalist Society between Hadley Arkes and Toledo Law School Professor Lee Strang. There's a lot going on in the discussion, but one of the points I think most worth raising is against the idea of positive law as a source of values. If a thing is right and good because the law says so, well, men make the laws and the laws could thus say anything. This is framed as a law school discussion in front of then-Professor Amy Coney Barrett, but it is in fact a debate at least as old as Socrates' feud with Protagoras, or his debate with Euthyphro.
24 comments:
Obama was--and is-- a fervent disciple of Saul Alkinsky. No further explanation for his remarks is needed, given whom Alinsky worshiped.
The debate's question is nonsensical. Whether or not the Declaration should inform our Constitution, it most assuredly did.
Eric Hines
The Declaration may, in fact be unconstitutional in recognising absolute truths and privileging those. It is a bit of a dilemma. I am with you. the Constitution is an accommodation to difficult situations, and it can be modified as we move forward. The Declaration - how would one modify that, exactly? We can't. It is a document of principles, and thus more valuable.
Maybe a slightly different question would be whether or not our current interpretation of the Constitution should be informed by the Declaration.
AVI, I'm curious how recognizing absolute truths would be unconstitutional. In what way do you mean that?
Not to presume to answer for AVI, whose thoughts are doubtless both different and interesting, but there's a clash with the First Amendment. If the Constitution holds that all are free to espouse any or no religion, then there isn't room for absolute truths.
We cannot, for example, hold that Americans necessarily believe that the Creator exists; or what the divine purpose was, such as the establishment of inalienable rights; or that governments necessarily have a duty to enforce rights that you are free to believe do not really exist in any metaphysical or pre-political sense. The two documents are at cross-purposes on the point.
If the Constitution holds that all are free to espouse any or no religion, then there isn't room for absolute truths.
That tension, if there is one, is the nature of the relationship between our Declaration of Independence and our Constitution as our two social compact documents. The one is our principles statement, and the other is an attempt to implement those absolute principles. That's why our Constitution was written in Order to form a more perfect Union and was designed, not as an absolute document itself, but as one that can be modified as we gain better understanding of how to implement those absolutes by necessarily imperfect men in a necessarily imperfect world.
Eric Hines
If the Constitution holds that all are free to espouse any or no religion, then there isn't room for absolute truths.
I think I disagree. I think it is quite possible to declare absolute truths, but at the same time decide that those very truths give people the liberty to disagree with those truths. God does this very thing. He established absolute truths, but gives us the liberty to be wrong. I don't see any contradiction there.
That's not quite the issue. The issue is that the Constitution gives everyone the right to disbelieve that there are absolute truths. They may be in error, but the government cannot under the Constitution act as if absolute truths exist, or as if God is necessary (though of course God is necessary, as Avicenna proved).
The usage "the Declaration may be unconstitutional" points out the priority relationship nicely, though. If a law is unconstitutional, it is void because it derives its presumed authority from the Constitution. If the Declaration is unconstitutional, so much the worse for the Constitution. The Constitution derives _its_ authority from the Declaration's principles and the actions taken thereby. If the Constitution gets out of order with the Declaration, it isn't the Declaration that gets set aside.
The NorthWest Ordinance deserves a bit of attention in this context. Done after the Declaration but before the (current) Constitution, it addressed, among other still important issues, government-funded elementary schools and the --admittedly gradual-- elimination of slavery.
I over-simplify, but both issues speak to the national commitment to the proposition that all men are created equal. All children are entitled by birthright to at least start out with fundamental skills of reading and arithmetic. And all workers are, or should eventually be, entitled to change employers, upon fulfillment of some limited-time contract or obligation.
Rights enumerated in the NWO -- trial by jury, free exercise of religion, citizens forming and operating their own forms of government, and a few others -- have no basis beyond the Declaration's assertion of the Creator's Endowments. The specification of such rights was more or less an afterthought in the Constitutional Bill of Rights -- a political amendment process to secure more votes for the new Social Contract.
The modern concept of freedom FROM religion was also addressed: "Religion, Morality, and knowledge being necessary to good government and the happiness of mankind..." No religion, and no standards of behavior == failed governments. Pretty clear.
The Declaration explains how to make Constitutions--and when.
The Constitution just explains how to make laws.
the government cannot under the Constitution act as if absolute truths exist
Well, I'm probably missing the point here, but I will trundle on until I understand how.
For me, 2+2=4 is an absolute truth, as is the reality of biological sex, and many other things. There is nothing in the Constitution that forbids the government from acting as if those things and many other basic truths are true, and in fact requires it when it specifies apportionment, age requirements, years in office, etc. The Constitution is a realist document.
There are limits in the Constitution that prevent the government from forcing YOU to act as if they are true, though, and so that does in some ways (e.g., state religion) prevent the government from acting as if they are true, but only because so acting would impinge on your natural rights.
That you have natural rights, though, is just the sort of absolute truth the Constitution enforces. We can see this most clearly stated in the first and second amendments, I think, although the whole document is informed by the notion of natural rights, and in that way, by absolute truths.
The usage "the Declaration may be unconstitutional" points out the priority relationship nicely, though.
May I quibble? I think "the Constitution may be unDeclarational" would be better. We say a law is unconstitutional because the Constitution is higher than the law. So, if the Declaration is higher, it would be nicely symmetrical to say it this way. Saying "the Declaration may be unconstitutional" seems to imply that the Constitution is above the Declaration.
J, I'll have to take a look at the NWO. It's been a long, long time since I learned about it, and I think I've only read bits of it.
A useful resource about the document, US government, and the era in general:
https://www.northwestordinance.org/
James: Exactly.
J.M.: Thank you for that. It's good to review.
Tom: It's not that I don't believe in absolute truths (although mathematical truths depend on and are derived from a set of assumptions out of which the system is created, and are thus only relatively true depending on the system's construction; but we hope they model the world accurately enough to be dependable when we use them for things like physics). It's that everyone, under the Constitution, is free to reject any of them and the government has to accept that.
That turns out to be a signal weakness of the Constitution, I think. There's nothing in it that is available to contest things like California deciding that sex isn't real but instead a matter of personal opinion, writing it into their laws, and forcing all the other states to give 'full faith and credit' to their designations. The Supreme Court gets to re-imagine the definition of basic social institutions like marriage, and to declare that opposition to this is irrational (though you can readily quote philosophers from Ancient Greece to the Enlightenment who had come to the old definition via what they thought of as a rational process). The lack of a grounding in truth is what is causing many of our problems.
The Declaration is a declaration of faith, and the Constitution is not. Are all men created equal? The evidence of your eyes probably does not suggest it; if it is true, it is true in a metaphysical rather than a physical sense. Is there a Creator? If so, did such a Creator intend to endow us with rights? How would we know what rights were meant to be endowed?
It is as Socrates said: not man, but some god, must be invoked here. The Constitution by formalizing agnosticism on the issue of what gods there are (if any) leaves itself fundamentally unmoored.
Thanks, J!
Grim, I certainly didn't mean to suggest that you didn't believe in absolute truths.
And thank you very much for the answer. That makes sense.
I am not sure any document would satisfy you, though. A number of nations have had an established religion, and yet they still end up fighting about what it means, how to interpret their scriptures, and all sorts of absurdities and contradictions pop up in their practice.
I think what the Constitution does is give the people methods to resolve these problems. While it doesn't give us a principle to stop California from doing that, it does give us ways to reverse what California has done, and what the USSC has done.
I have long thought that the one glaring gap in the Constitution is that there is no limit on how the USSC rules on Constitutional matters. However, I think that is only apparent in hindsight, especially after the 20th century. And the Constitution gives us a way to rectify that, too, in the amendment process.
I think in this way, the Constitution does embrace an absolute truth, that the people hold the ultimate power (in a republican system, of course). If you get enough of the people together on an issue, you can solve any of these problems. What the Constitution doesn't do is dictate what our answers should be; that would in fact go against the one absolute truth it does implement.
But what would your solutions be? How could we change it to make it more of what you want? Or, if you could time travel back and be at the Constitutional Convention, what would you have argued for from the beginning that would have prevented these problems?
I think they could hardly have done better, and that it’s on us to learn when we try again. The biggest issue is what we learned from Weber — continuous government is necessarily corrupt— contrasted with the problems we get from Hobbes and his philosophical allies. We need an army to stay free against the powers of the world, in other words; but a government entrusted with an army becomes corrupt and evil, as the Founders warned.
That’s a hard problem. Maybe next time we stick to volunteer government, with a very restricted range of powers and the Declaration duty of protecting natural rights. Militia for defense, per the Founders. Becoming unconquerable rather than capable of conquering may be the right path.
I’m afraid I’m a bit late to this conversation as I have been on vacation with the family for the last two weeks. Nevertheless, I’m compelled to make some points that I did not see mentioned previously (if I missed them I apologize.)
First of all, the Declaration of Independence and the Constitution are two very different documents serving very different purposes. The Declaration served as a public statement justifying the Colonies separation from the United Kingdom. While it does address, briefly, some abstract concepts such as equality, it is primarily an indictment against the behavior of the Crown. It is not a legal document and it did not even establish the independence of the colonies, that was accomplished by the Treaty of Paris which named each individual colony as a party, not the “United States.” It is important because it provides a view into the reasons why the colonies sought separation and some of the values behind those reasons.
The Constitution, on the other hand, is a legal document that establishes a blue print for a federal (national) government. It does not attempt to answer life’s ultimate questions. It does not seek to provide justifications to the world for actions taken. The preamble sets forth some general goals such as establishing liberty in a short introductory paragraph but the rest of the document lays out the organization, responsibilities, and restrictions of the government. Consequently, it is not informed by the Declaration. The Constitution specifically recognizes enforceable rights of the citizens against the government and creates causes of action citizens can rely upon. The Declaration does not. Consequently, you don’t need the Declaration to interpret the Constitution. Because the two documents are fundamentally different, it would be counterproductive to even attempt to do so.
I think that position is impossible to justify, Joel. One cannot separate the philosophy from the positive law that follows from it; otherwise, should the positive law drift away from the philosophy, there would be nothing to check it against.
Consider a parallel case to clarify what I mean here. Let us say that you were in a position to start a new nation, and you decided that you wanted it to be a formally Christian nation. (Hypothetically and arguendo; I'm not suggesting you'd want to do that.) So you draft a new constitution, perhaps closely following the US Constitution in many respects but substituting for the 1st Amendment an actual establishment of religion. You might still recognize people's right to dissent on religion, but the morality of the state's laws must align with Christianity.
Now, having done that, how could you possibly suggest that it was improper for the Gospels to inform the Constitution? It would be not only proper, but absolutely necessary; the whole thing is an exercise in absurdity if you can't check the laws against the underlying philosophy as presented by the Gospels. The fact that the Gospels were never intended as legal documents, and are not legal documents, does not change the fact that they are necessary to the purpose of understanding whether laws under this Constitution could be valid expressions of Christian principles.
The same is true in the present case. Should this or any future American government come into basic violation of the principles of the Declaration of Independence, the fact that it had managed to go through the motions of establishing laws in the constitutional framework would not make those laws valid. Rather it would -- exactly as the Declaration says -- serve as reason to reject that constitution as inadequate to the fundamental purpose of defending natural rights. It would be time to follow the Declaration and set aside that set of safeguards as demonstrably inadequate, and to establish new ones that might work better.
The issue seems to be the role of the Declaration of Independence. It appears that you assign to that document a foundational role, somewhat similar to the Ten Commandments or Gospels, though in a secular sense. I don’t think Jefferson, or the founding fathers as a whole, assigned to that document such a role. I don’t think the historical record supports such a position.
The Declaration was simply a distillation of thought that previously existed in the colonies, which itself was the product of an ancient struggle establishing the rights of Englishmen from Magna Carta through the Glorious Revolution and beyond. Such ideas had already previously been recognized in the colonial charters of almost ever colony. In Virginia’s first charter King James I guaranteed to the colonists and their posterity all of the “liberties, franchises, and immunities” possessed by anyone born in England. Every colonial charter included similar provisions. The Declaration simply, though eloquently, represented colonial thought regarding how the Crown had violated their rights as British subjects. It is true that in doing so it communicated certain values and principles. However, the Declaration was ultimately a public relations document that sought to stir the emotions of colonists and promote support from British subjects back in England.
Furthermore, that document did not create the philosophical foundation for our republic. For instance, there is nothing in the Declaration that would have been violated by the creation of a constitutional monarchy or an aristocracy. In fact, that is what Hamilton preferred. However, such an arrangement would have specifically violated the Constitution, which guarantees to each state a republican from of government and prohibits titles of nobility.
The Declaration of Independence indicted the King for specifically violating the colonist’s rights as Englishmen. Those rights, and their particular Anglo-American expression, existed prior to the Declaration and were not created by that document. If you want to look for an organic expression of the law of the United States prior to the Constitution I’m afraid you will have to find it in earlier expressions of the rights of Englishmen.
It strikes me that you are referring to the Declaration both as "not a legal document" and "an indictment." Now an indictment is necessarily a legal document.
But I am, as you say, convinced that the Declaration has a foundational role. It's true that most of it is a reference to wrongs the king has done; but the first page or so is foundational philosophy. You're right that it does not give the arguments -- indeed, it refers to its moral conclusions as 'self-evident,' which they are not. But it is the justification not only for the revolution, but also for the purpose of any government, and the reasons why any government whatsoever may be set aside.
In that way it goes beyond the facts of the particular dispute, and attains a kind of universality and eternal relevance. We too can look to its terms to decide whether the Constitution has failed; whether the government has. It is the Declaration, and not the Constitution, that sets the terms on which that question would be decided.
Let us explore this further. I’m today beginning “The Political Theory of the American Founding” by Thomas G West. It looks like it will illuminate the discussion. I’ll have further posts.
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