If there's one thing I can't stand, it's to think something that you think is a new, original thought only to discover that some equally original (in this case, more original) asshole has thought it first!

The other day, I was thinking along the lines of original intent behind the original intent of the original philosophy behind the original philosophy of the founders and VOILA! I thought I had an original thought!

Not a thought really; just a new word. It occurred to me while thinking about matters which go to the heart of the increasingly tired argument that the Declaration of Independence trumps the Constitution (or is allowed to rewrite it). According to this thinking, modernistic judges have so mangled the "original meaning" of the Constitution, (meaning not the words but the original "philosophy" of the Constitution, as expressed by the founders in the Declaration of Independence) that it is necessary to "save" the Constitution by rewriting it according to this "Original Philosophy." Contrary to what many might believe, this philosophy is not what was actually written in the Declaration, but rather, what certain phraseology, as interpreted by certain scholars, reveals about the actual philosophy of the founding fathers. This philosophy, it is argued, should control not merely the meaning of the Declaration, but should be allowed to override and control the meaning of the Constitution -- whenever Those Who Know Most About These Things see fit.

But I stray from my un-original thought, and what I thought was a new word. It occurred to me that to simplify thought, and to help spread the meme faster, the convoluted argument -- that Unpopular Interpretations Of The Constitution Can Be Nullified At Any Time By Resorting To Our Interpretations Of The Declaration -- might best be reduced to a single word:

UNDECLARATIONAL!

Lest I forget (and be accused of stealing people's thoughts), here's a disappearing Google cache link to the guy who stole anticipated my new word back in March:

The people on the forum who are against controlled dangerous substance laws (CDC laws) are making two separate arguments.

First, both Smrtepnts and Sam both are arguing that there is no reason for CDC laws. They argue that they are arbitrary and allow people to profit off of the fact that the trade is illegal. Furthermore they seem to believe that there is nothing inherently wrong with CDCs. The conclusion being drawn appears to be "CDC laws should be repealed."

The second point, which is mostly argued by Sam and that guy who lost his CAPSLOCK KEY, is that CDC laws are unconstitutional. Sam believes that the government has no power to enact the laws, and they violate the Declaration of Independence. The fact that the laws appear on the books is a good enough reason for a revolution, because they are much worse than anything the colonists had to endure at the hands of the British. Sam started with the assertion that the laws were bills of attainder, but has moved on to other arguments that the laws are undeclarational (Yes, I just made that one up), and other equally weak arguments that they violate the Constitution. [Emphasis added.]

Bah!

We now know, thanks to many years of research, that Jefferson really wanted to impose the law of the Old Testament on Americans, and that while he might not have said so, he cleverly crafted a trap door in the future Constitution when he wrote the Declaration to allow learned Men of God future powers of veto and nullification.

"Life, liberty, and the pursuit of happiness" actually means the freedom to obey the laws of God as interpreted by those who best know about these things.

Anyway, while I must give the anti-drug law kids credit for the word, my point in using it was to make it easier to understand the point being made by the philosophical scholars who contend that the Constitution, or any interpretations thereof, even any laws which are unpopular, may be declared Undeclarational!

It has been argued, strenuously, that even certain human behaviors might be said to be Undeclarational.

Especially sodomy!

Did you know, for example, that in the very first paragraph of the Declaration of Independence, sodomy itself is condemned? I didn't either, but I'm here to tell you that there are men alive today who know more about the thoughts which were really inside the mind of Thomas Jefferson than did Jefferson himself!

Tough as it is to grapple with these concepts, I've done my best at a rewrite of the Declaration. Here's the text of what we normally consider the first paragraph (with the revisions in red):

When in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature's God -- meaning the laws of the Old Testament, especially the Levitical prohibition against sodomy -- entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness -- which means the right to do only what one is told to do by one's Creator, to be interpreted in the future by men well versed in religious revelation and Old Testament Law. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.....

OK. I hope readers will indulge me a little if I sounded overly insolent. Perhaps satire is not the best way to deal with issues which ought to be taken seriously. If this is too satirical, I'm sorry. It's getting close to the New Year, and I've been partying a little, and in general I've been wearing myself out.

So I may be having trouble separating reality from fantasy.

I don't want readers falling into the same trap, but it's obvious that some of my readers don't appreciate satire. I have seen a recurrent pattern that when I write what I hope are original, playful utterances (qualifying them as I must when I discover someone else uttered them first), some angry commenter will come along and complain that I haven't done my homework or provided any "proof!" No documentation! No "statistics!" It might not be held to be a self evident truth, for example, that there are people who claim the Constitution is Undeclarational, and I haven't given a single example.

Well, my nitpicky leftist commenters, fear not! There are so many examples that I don't know where to start. As a meme, the Undeclarational Constitution has spread far and wide on the Internet. While the phrase "Undeclarational Constitution" might not yet be called what it is, the groundwork has at least been laid for undeclarational sodomy -- meaning that the Declaration of Independence was specifically meant to be anti-sodomy in its Original Intent. Simply google "laws of nature and of nature's God" and "sodomy" and you'll get 406 hits.

Google "laws of nature and of nature's God" and "homosexuality" and you'll get 1080 hits.

At least one judge has stated how this principle should apply as a matter of law:

"Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God upon which this Nation and our laws are predicated." Chief Justice Roy Moore, of the Alabama State Supreme Court

Well, whose view should control? Shouldn't author Thomas Jefferson be heard from? According to most conventional scholars (and according to his own writings) Jefferson would not have approved of using the Old Testament as a basis for law. Not only did he rewrite the Bible (omitting the Old Testament entirely), but late in life he expressed the hope that Unitarianism might eventually come to be the majority religion in America.

So how did this meme happen?

Why is it spreading by leaps and bounds?

At the risk of sounding a bit paranoid, I worry that even highly respected bloggers defer to the idea of an Undeclarational Constitution. (Meaning that much of what we assume the Constitution means is "Undeclarational.")

I say "paranoid" because some of my fears were generated by Nick Coleman's invective-filled attack on Power Line which has justifiably been much condemned in the blogosphere. I can't stand ad hominem attacks, and I think it's a very poor piece of journalism.

Here's what the writer said about Power Line's "affiliations."

Johnson and Hinderaker are fellows at the Claremont Institute, a conservative think tank that seems to be obsessed with gays and guns and wants to return us to the principles of our founders, although I can't determine if that includes Ben Franklin's skirt chasing.

Mainstream or Extreme? We report, you decide: Last month, Claremont gave its Winston Churchill Award to that visionary statesman and recovering drug addict, Rush Limbaugh!

Time magazine's "Blog of the Year" is not run by Boy Scouts. It is the spear of a campaign aimed at making Minnesota into a state most of us won't recognize. Unless you came from Alabama with a keyboard on your knee.

The attempt to smear Power Line with resort to a claim that its bloggers are "affiliated" with the Claremont Institute is utterly baseless -- first of all because the Claremont Institute is a fine think tank composed of leading scholars, including some wonderful people I feel privileged to have known, and second because affiliation has nothing to do with the validity or invalidity of one's thoughts or writings. Might as well say they're "affiliated" with the Republican Party! For that matter, it could be claimed that because I know people there and have attended lectures, that I too am "affiliated" with the Claremont Institute.

Fine. I'm also affiliated with the ACLU, the NRA, pit bulls, and the Grateful Dead!

None of that has anything to do with the truth of what I'm saying, and the affiliations of Power Line are irrelevant to the blog's accuracy. As the blog which did more to expose Dan Rather and RatherGate than any other, we are all indebted to them. They performed a major service for the country, and more than earned Time Magazine's Blog of the Year designation.

However, just as I do not agree with everything the Claremont Institute says, with all respect to the blog I cannot agree some of Power Line's ideas about the Declaration of Independence.

Most importantly, I hope they don't believe in the idea that the Declaration's "philosophy" should be interpreted as making the very founding of this country anti-homosexual in nature.

I'll use this post as a starting point:

Absent knowledge of American history, one would never know that the United States is founded on the basis of a creed, rather than on tribal or blood lines, in which God plays a prominent part. Absent knowledge of history generally, one would never know that this fact makes America unique.

What is the American creed? Few know it as such, but as it happens it is of course closely related to the story of Washington's crossing the Delaware. The American creed is expressed with inspired concision in the words of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

But does the Declaration have any legal status such that these words can be truly deemed to state the "American creed? It does, although virtually no one seems to know it. In 1878 Congress enacted a revised version of the United States Code that included a new first section entitled "The Organic Laws of the United States."

Here's Power Line on Lawrence v. Texas:

[Lawrence v. Texas] ...is an amazing disgrace. The United States alone in the world is a country founded on the proposition that all men are created equal and are endowed by their Creator with the right to life, liberty, and the pursuit of happiness and that government is instituted among men to secure these rights. These rights exist under what the Declaration of Indepence -- the first of the organic laws of the United States -- refers to as the laws of nature and Nature's God.

Among the founders, sodomy was universally condemned as a crime against nature. It was illegal in each of the thirteen states existing at the time the Constitution was ratified and the Bill of Rights was adopted. In Thomas Jefferson's Virginia, it was a crime punishable by death. When Jefferson wrote an amendment to the criminal code lessening the penalty for sodomy, he nevertheless classed it as a crime with rape, polygamy, and incest.

Today the Supreme Court declares that homosexual sodomy constitutes "a form of liberty of the person in both its spatial and more transcendent dimensions." Justice Kennedy, the author of this nauseating palaver, is obviously so in love with what he thinks is his own eloquent rhetoric that he fails to notice his laughable double entendre. What is not funny, however, is the destruction of the recognition of the laws of nature and nature's God on which our true rights depend. The Supreme Court's opinion today is an act of political destruction that should be recognized as such.

I'm genuinely worried that the following three steps (of what I consider bad logic) are deliberately introducing anti-homosexual prejudice into the founding:

Notwithstanding the fact that a very legitimate states' rights argument can be made in favor of sodomy laws, I think it is illogical (and wrong) to bootstrap into the Constitution something which simply is not there.

Power Line has another analysis here:

Alone in the world, the United States is founded on the "self-evident truths" that all men are created equal and are endowed by their Creator with the right to life, liberty, and the pursuit of happiness, and that government is instituted among men to secure these rights. These rights exist under what the Declaration of Indepence -- the first of the founding laws of the United States -- refers to as the laws of nature and Nature's God.

The founders of the United States never spoke of "values"; the concept was foreign to their political discourse. The concept of "values" derives from the thought of the German intellectual Max Weber. Weber maintained that the fundamental distinction of social science was that between "facts" and "values." Regarding "values" -- the deeply held beliefs that shaped the lives of citizens -- social science could render no judgment.

"Values" are by definition relative. They have no objective status or connection to a commonly shared nature. The supplanting of nature and self-evident truths by "values" is more or less the great project of modern liberalism, whose home is in the Democratic Party. It is but a short distance from the orthodoxy of "values" to the related dogmas of "multiculturalism" and "diversity" that permeate liberal thought. In this sense the Democratic Party is the party of "values."

On the other hand, the Republican Party has its roots in the founders' thought. Recall, for example, that in its first platform the Republican Party condemned slavery and polygamy together as "the twin relics of barbarism." Can anyone today explain why? Or how "homosexual marriage," for example, should be viewed in light of such an explanation?

Among the founders, sodomy was universally condemned as a crime against nature. It was illegal in each of the thirteen states existing at the time the Constitution was ratified and the Bill of Rights was adopted. In Thomas Jefferson's Virginia, it was a crime punishable by death. When Jefferson wrote an amendment to the criminal code lessening the penalty for sodomy, he nevertheless classed it as a crime with rape, polygamy, and incest.

Today the Supreme Court declares that homosexual sodomy constitutes "a form of liberty of the person in both its spatial and more transcendent dimensions." Missing in the Court's grandiloquence is any recognition of the laws of nature and nature's God on which our true rights depend.

And why aren't Jefferson's views on the "separation of church and state" considered at least as relevant as his views on (what he considered more humane) punishments for "sodomy"?

The argument is often made that homosexuality is the moral equivalent of slavery. Originally articulated by Harry Jaffa (see Why Sodomy Is Not Gay), it is a concept with which I am quite familiar. I publicly disagreed with Harry Jaffa about it years ago, and without getting sidetracked or boring the readers, I think that slavery and homosexuality can easily be distinguished for any number of reasons. (For starters, there's a thing called consent.....)

But whether slavery and polygamy were "twin relics of barbarism" is about as relevant to sodomy as the branding of cattle with hot irons or the use of the ducking stool by American colonists to discipline sharp-tongued women. What is so self evident about the apparent analogy of homosexuality to "barbarism" that I am missing?

The slavery argument aside, I think that the attempt to instill anti-homosexual prejudice into the Constitution is more than just wrong. In the Machiavellian sense, I think it's a political miscalculation, and it's proponents would do well to reconsider their position.

As to why it is logically wrong, Jefferson's "Nature's God" dicta, while admittedly catchy as a soundbyte, doesn't withstand analysis as a founding indictment of homosexuality. Let's look again at the entire phrase as a piece of rhetoric:

When in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Resort is sometimes made to the writings of John Locke, who, it is argued, was the father of the Natural Law which Jefferson believed in as well as a firm believer in Biblical Law. Therefore, if Jefferson utilized a Natural Law phrase (which he clearly did), that means he must also subscribe to all of the views of John Locke, which means the Bible must be read into the Declaration accordingly. This thinking is neither reasonable nor logical. Suppose I quote from the Bible, and say, "Render unto Caesar that which is Caesar's." Does that mean I believe in Leviticus? I don't see how. And even if you could show that Jefferson did think this thought or that pronouncement of John Locke, how does that breathe Locke into the Declaration, much less the Constitution? Jefferson loved cock fighting too. Does that mean the Declaration declared a sovereign right to pit fighting chickens against each other, and that said right came from God?

I also think bootstrapping such a "Natural Law veto" into the Constitution is a political miscalculation, and here's why:

In the latter regard, I wouldn't want to see what would happen if the deconstructionist followers of Michel Foucault get hold of the "Undeclarational" meme, for if they started in on the Declaration, I shudder to think how they might run with some of the phrases . . .

(Perhaps it should be borne in mind that the Declaration was quite popular in certain camps in the 1960s, and, well, it's still popular today.)

A final thought. Not that anyone asked me what I think of the Declaration, but I think it's a pretty fine document. I admit, I'm a bit partial to that "life, liberty and the pursuit of happiness" stuff. At times in my personal life, I've stretched the meaning of the latter a bit far. But, whether in theory or in practice, I still prefer an excess of freedom to the alternative of restrictions on freedom -- especially when the latter are based upon a document I think was clearly intended to expand -- not restrict -- what has become the envy of the world.

UPDATE: In the comments below, Ironbear reminded me of penguins. (Which reminded me of bonobos, and the need to add these links.)

UPDATE: Respected legal scholar Timothy Sandefur applies Natural Law (and the laws of nature and of nature's God) to Lawrence v. Texas -- with a very different result:

If you believe that such natural law is the objective Truth, we could say that just as Einstein’s “discovery” of the Truth superseded what Newton knew, our Founders discovered a “Truth” that slavery violated the law of nature, of which Aquinas was not aware.

And we, in building upon the shoulders of our founders, and applying their objective, timeless principles, can similarly discover Truths of which our founders may not have been aware. See Lawrence v. Texas.

CORRECTION: The author of the last quote I cited was not Mr. Sandefur, but Jon Rowe, who was guest blogging. My mistake! Not only does Mr. Rowe has his own blog, but he has done a fine job of refuting the moral analogy between slavery and homosexuality.

Finally, at the Claremont Institute's web site, Mr. Rowe, Mr. Sandefur, and others debate the "Natural Law and homosexuality" issue at great length.

MORE: For what it's worth, I'd like to make a grammatical analogy to the Second Amendment. The following is from a Wall Street Journal analysis of the Justice Department's current Second Amendment position:

The Second Amendment states that "a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The memo's authors, Justice Department lawyers Steven Bradbury, Howard Nielson Jr. and C. Kevin Marshall, dissect the amendment's language, arguing that under 18th century legal conventions, the clause concerning "a well-regulated militia" was "prefatory language" without binding force. "Thus, the amendment's declaratory preface could not overcome the unambiguously individual 'right of the people to keep and bear arms' conferred by the operative text," they write.

(Via Glenn Reynolds.)