We still have the Constitution, right?

From time to time, my attention is drawn to an American political philosophy I consider downright scary, and that is "Declarationism." What scares me is idea is that the Constitution is not actually the supreme law of the land (even though it plainly states that it is), but that it is actually subordinated to the Declaration of Independence. Never mind the fact that the Declaration was never intended to be the law of the land, much less having authority over the Constitution; the "Declarationists" believe, simply, that the Declaration of Independence is the ultimate trump card, to which everything else is subordinated. The problem with that is what the Declaration did was to set out the philosophical justifications of the founders for the right of a people to overthrow tyranny and establish self government. Beyond that, it doesn't get into the specifics. But never mind that! The Declarationists fill in the blanks, with a rather far-fetched (IMO) claim that the Declaration does more than it did, and that it actually establishes what they call "Natural Law" and subordinates everything (including the Constitution) to it.

Defining and spelling out "Natural Law" is beyond the scope of this blog post, but suffice it to say that they have defined it and spelled it out. I see it as a dangerous potential power grab, and I worry that these people are well organized, and that (if we assume some of their their political endorsements reflect that they are not mere fringe), they might be actively seeking power. While I believe in working with political coalitions, I also don't want to help give political power to people whose philosophical belief is that are possessed of some divine right (and that is what we're talking about here) to make an end-run around the Constitution by invoking "Natural Law." I will never forget a debate I witnessed between some of the leading proponents of Natural Law in which they dismissed the well-established constitutional doctrine of states rights and federalism out of hand. There were, in their view, some things the states had no right to do, and legalizing abortion was one of them. (Ditto same sex marriage; neither the states nor the federal government have the right to legalize it.) Natural Law via their view of the Declaration nullifies the actions of the state legislature, or even of the federal government, and of course, "it" would also overrule even legally adopted amendments to the Constitution. Getting rid of Roe v. Wade would (in their view) not solve the problem, because of the pesky "states rights" doctrine. But never mind! Federalism is overruled by Natural Law! As they and only they understand Natural Law.

A lot of people are talking about what will happen "when the shit hits the fan," but many of the comments to this post that Glenn Reynolds linked yesterday reminded me that there are some people on the right who very much want the shit to hit the fan.

What sort of person actually wants the shit to hit the fan? Who would want national bankruptcy, insurrection in the streets, civil war? Are they serious? Or are they just guilty of political hyperbole and sounding off? I certainly hope it is only the latter, but my worry is that because power abhors a vacuum, there might be power seekers with extreme views who realize they'd never be voted into office by any American majority, and whose best hope lies with a seizure of power.

Ah, but the Constitution does not allow that, right? That depends. If the Constitution is subordinated to the Declaration, and the Declaration means Natural Law, and if Natural Law means whatever the Natural Law activists want it to mean, then a Natural Law dictatorship (run by a select few who can divine the true meaning of Natural Law) wouldn't be theoretically unimaginable.

I'm sure this is all paranoia on my part, but I wanted to get it off my chest.

MORE: I emailed a close friend with my concerns, and he replied,

I think there are very few people who really want to see America hurt so it can theoretically rebound in a purer state again, in the sense that they plan to vote or maneuver politically that way. I think they're mostly blowing off steam. The sense of urgency and distress is real, but I doubt the big talk is. Just my opinion, but maybe I'm a Pollyanna.
My usual fallback position is that "well, we still have the Constitution to protect us," but what about the people who think the Constitution is "undeclarational"?

posted by Eric on 05.17.10 at 10:16 AM










Comments

Never heard of these declarationists before. I suspect they are just a few loons that are loud on forums somewhere. Even if TSHTF, I doubt they could do much of anything one way or the other.

For the comments, I don't see people cheering for doomsday. I read people wanting to turn things around. They see that what is going on is destructive and will end badly. The chances of turning around an entitlement society are looking slimmer every day, and they recognize that. It's more of a sense of resignation I read there than a sense of some sort of militant 'worship the fireball planet of the apes' thing I think.

Doubtful   ·  May 17, 2010 10:57 AM

So now you're against enjoying The Funniest End of Civilization Ever, is that it?

You can't have the funny without the endy.

Veeshir   ·  May 17, 2010 1:12 PM

The supreme law clause of the Constitution is about government function. It has nothing to do with an individual's morality or beliefs.

The clause is predictive; it helps a person guess what will happen if he contends with government. Or when parts of government quarrel with each another.

The clause is no persons Supreme Law unless he chooses to worship the Constitution and regards the US government as its earthly manifestation.

IMO Declarationism is impossible to reconcile with the routines of government. It is about abolishing or altering bad governments.

And while I think blowing some or all governments to oblivion might improve the universe I will leave it to true Natural Philosophy, the forces of the universe, to rain destruction as they will.

KTWO   ·  May 17, 2010 2:45 PM

As a name and as a so-called movement, Declarationism may sound silly. But the principles of some of those who are named in the Wikipedia article (e.g., Harry Jaffa) are anything but. And before you jettison natural law (on the grounds that it doesn't make sense to you?), you might consider just what might take the place of those natural law doctrines that the founders of this country thought (imagined?) were vital to a proper grounding of both the Declaration and the Constitution. Just by way of illustration, it is Jaffa's argument (in Crisis of the House Divided) that Lincoln's defense of the Constitution against the Confederacy and his principled opposition to slavery is not intelligible without recourse to the principles of the Declaration. I tend to agree.

HMI   ·  May 17, 2010 5:19 PM

I beg to differ with the thrust of yur argument. "Natural Law" iprovides the very foundation of the Constitution. The entire concept of a "Bill of Rights"--a list of those "inalienable" rights against which the government may not move--is reduced to pure majoritarianism--the "God is on the side of the bigger battalions" argument. Or in the immortal words of that great civil libertarian, RFK: "Screw 'em, we've got 51 votes."

Of course ever since the great Augustus Compte conceived logical positivism, academia (save only the Catholic Universities) denies the validity of anything but man-made law. Yet paradoxically, savagely ironically, the concept of "human rights" (they dare not call it "natural rights", hence the use of its functionally equivalent term) is the first thing that the secularists turn to abroad to serve as a moral prophylactic and rallying point against the depredations of tyrannical governments against their own citizens. And whence do these "human rights" come from? How exactly are they derived? Crickets chirping....this is a subject the secularists will not touch. Yet they are compelled to use natural law even as they deny its existence if they are to champion the cause of the common man and protect him from the tyranny of the simple majority. No natural law= no intellectual/philosophical foundation for the Bill of Rghts.

virgil xenophon   ·  May 17, 2010 5:34 PM

If anyone wants a nickel's summary of "Natural Law" I suggest Martin Luther King Jr.'s "Letter from Birmingham Jail", which does explain it nicely in the course of applying it to his situation.

It's older than the Declaration, BTW, having roots that go back to the Stoics (note the capital letter) and was further developed in the medieval era by many philosophers.

Under it, man-made (or positive) law is (or at any rate ought to be) a particular application of the pre-existing natural law, which is inherent in human nature and if we break this law, this law breaks us.

It is, incidentally, the only theory that I have heard of that gives you grounds to agree with, "It must be right, it's legal."

Mary   ·  May 17, 2010 6:22 PM

To Mary & Virgil Zenophon:
Assuming you are both advocates of natural law, law that is inherent in human nature, derived from the nature of man qua man, etc.,
would you care to comment on this very insightful paragraph from Eric Sheie's recent discussion of a brutal Chimp attack:

This is not to say that humans are "worse" than chimps, for we are not. Humans have developed (or, at least, we are supposed to have developed) what is called civilization, with rules and standards for civilized human behavior. Chimps have not, nor can they. They will always retain the capacity for being brutal simian killer apes -- even if we have mythologized this away in what I would call a classic example of simple denial. As to what's behind the human need for this denial, perhaps it is fear. Not of apes, but of ourselves -- in our primitive, pre-civilized evolutionary state. For some strange reason I can't quite penetrate, we seem to want the apes to be "better" than we are. Perhaps it is related to the love of all things primitive, and the ridiculous idea that children are "innocent." And if apes are in fact as capable of murderous and vicious atrocities as adult human beings are, then there's nothing "better" about being in a childlike and primitive state.

Is it not in the nature of man, qua man, to hunt for food & kill brutally, to protect by killing brutally, to be at heart just a vicious beast?

Stoicism, my ass.

Frank   ·  May 17, 2010 11:45 PM

Philosophy is fine, and it can be discussed forever. But the Constitution is a written document, and as it says, the supreme law of the land. It can be amended according to the existing processes, but it is not subordinated to any philosophy, and those who insist that it should be are in my opinion not being loyal to the Constitution.

Eric Scheie   ·  May 18, 2010 12:26 AM

I favor natural law. E=mc^2. F=ma. F=kq1q2/r^2. 2H2 + O2 = 2H2O. etc.

There are universal codes of morality that exist in all civilizations across space and time. It is when we deviate from those universal codes that we sow the seeds of our destruction i.e. we go from limited government to unlimited government.

M. Simon   ·  May 18, 2010 1:10 AM

The virtue of the Declaration is its resistance to interpretation, so called.

"He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance."

That observation is in no way dated.

Brett   ·  May 18, 2010 7:41 AM

Nah, Frank, you're just laying undue weight to your baser desires so you can justify your own behavior to yourself.

It is the virtuous and not the vicious behavior that is natural to us, just as certain soils and rainfalls and amounts of sunlight are natural to animals, as we can see by comparing societies to see where humans flourish.

Mary   ·  May 18, 2010 12:54 PM

It is the virtuous and not the vicious behavior that is natural to us

That certainly wasn't the case with the other children I encountered when I was a child. Virtue (IMO) has to be learned.

But the point is not who is right about such things; only that they do not overrule the plain language of the Constitution. Because if they do, then the Natural Law Constitution becomes just as subject to human whim as the "living, breathing Constitution."

Eric Scheie   ·  May 18, 2010 1:08 PM

Nah, Frank, you're just laying undue weight to your baser desires so you can justify your own behavior to yourself.

Not at all. If virtuous behavior were natural life would be so much easier. But some of us live in the real world, as ugly at times as that can be. As a 6 year old child I had a little girl friend at school. She was shunted aside by other children. Her mother braided her hair in 2 long braids that she pulled forward, and always wore a kind of German looking dress. Her name was Joanna. The children would torment her endlessly on the playground. In a kind of ring-around-the-freak dance they would circle her until she cried, and then leave her crumpled. After school one day, I got to go home with her, until my mother could pick me up after work. She lived in a small cottage with her foreign born mother, and much older father. The mother was very strange, always looking down, barely speaking, but erupting at times for no apparent reason. I remember so well that she had numbers tattooed on her arm. Many years later I learned of course that she had been in one of Hitler's camps, and the older man was a U.S. soldier who married her and brought home.
In this little story are two perfect examples of the ugliness and cruelty inherent in the human condition. You are only kidding yourself if you believe humanity is naturally virtuous.

Frank   ·  May 18, 2010 6:33 PM

Eric says, "But the Constitution is a written document, and as it says, the supreme law of the land. It can be amended according to the existing processes, but it is not subordinated to any philosophy, and those who insist that it should be are in my opinion not being loyal to the Constitution."

On this understanding, there would be no principled argument against or for, say, amending to remove the 2nd Amendment or to re-legalize slavery or to permanently raise the top tax rate to 90% or to give blacks 2 votes each, as a way to make up for slavery and discrimination. Anything anyone can get through the amendment process is OK, since the Constitution cannot be said to reflect any particular philosophical understanding, and emphatically not any mythical assertion of "inalienable rights" to life or liberty. I take it that any recourse to Farrand's or Madison's notes on the constitutional convention, let alone the Federalist Papers, would be equally acts of disloyalty (!) to the Constitution.

HMI   ·  May 18, 2010 10:34 PM

The story of U.S. policy during the genocide in Rwanda is not a story of willful complicity with evil. U.S. officials did not sit around and conspire to allow genocide to happen. But whatever their convictions about "never again," many of them did sit around, and they most certainly did allow genocide to happen. In examining how and why the United States failed Rwanda, we see that without strong leadership the system will incline toward risk-averse policy choices. We also see that with the possibility of deploying U.S. troops to Rwanda taken off the table early on--and with crises elsewhere in the world unfolding--the slaughter never received the top-level attention it deserved. Domestic political forces that might have pressed for action were absent. And most U.S. officials opposed to American involvement in Rwanda were firmly convinced that they were doing all they could--and, most important, all they should--in light of competing American interests and a highly circumscribed understanding of what was "possible" for the United States to do.
ClassicMortgages

jhontaff   ·  May 22, 2010 4:30 PM

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