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Although I don’t believe I have ever seen so many errors in such a short essay, the principal error in Mark Pulliam’s response to my recent piece, “Don’t Read the Constitution the Way Robert Bork Did” is this: If one claims to adhere to the original intentions of the Founders, one must first understand those intentions. In that effort, Pulliam fails in every respect.
Beginning with the question of natural law and the Declaration of Independence and moving in all directions from there, Pulliam presents a blinkered understanding of the purposes and meaning of our Constitution. There is not a single prominent American Founder—not Madison, Hamilton, Adams, Mason, Randolph, Wilson or any of a host of others—who did not believe that the Declaration served as the authoritative source of the Constitution’s authority. Miss this point and you cannot understand the original intent of the Constitution.
Pulliam cites Justice Scalia as an authority. However much we may praise many of the conclusions Scalia reached on the bench, it remains that Scalia, unlike Justice Thomas, was a positivist—saying on one occasion that if the majority voted to legalize abortion, then it should be legal. Thomas, however, realizes that according to natural law principles, abortion is a violation of the natural right to life that is expressly protected by the Constitution. In the face of Thomas’ argument, Pulliam collapses: natural law—“whatever that is.” Is it really so difficult!
Consent of the Governed Meets the Ghost of Calhoun
The Founders said in the Declaration that inalienable natural rights were the gift of the Creator and endowed equally on every human being because their nature as human beings demands it. Governments were instituted to secure the inalienable rights to life, liberty, and the pursuit of happiness. Note, too, that this equality in nature is the basis for the Declaration’s statement that “just powers” of government derive from the “consent of the governed.” Here is the social compact origins of government. When John Adams wrote the Massachusetts Bill of Rights in 1780 he gave the same, albeit more detailed, account of compact. Individuals form the social compact, not states. When Madison later said that “all free and just government is based on compact” he said the compact is made by the unanimous consent of individuals, not states.
In the central number of The Federalist, Madison recurs to the Declaration’s appeal to natural rights as the authoritative source of the Constitution. (Pulliam needs to reread his copy). Madison justifies the fact that the Constitutional Convention violated its charge merely to reform the Articles of Confederation—substituting instead an entirely new Constitution—to be submitted, not to the states (as Pulliam falsely claims) but to the people for ratification. This is justified, Madison argues, “by recurring to the absolute necessity of the case: to the great principle of self preservation: to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.”
One has to be willfully trying to avoid it to miss the obvious reference to the Declaration of Independence.
Pulliam insists, against the historical record, that the Constitution is a compact among the states. As I reported in my last reply this was, as Madison described it, “an ingenious sophism” invented by John C. Calhoun to defend the southern slaveocracy. Calhoun agreed with Pulliam that the Declaration was a dangerous idea and insisted that “all men are not created equal,” rather “all states are created equal.”
Calhoun’s sophism would allow for the further argument that since the states created the Union, the states could leave the union whenever they believed the terms of the compact had been violated. It was in this context that I quoted Abraham Lincoln’s July 4, 1861 speech where he argued—irrefutably in my considered opinion—that the Union was older than the states, and that no state had existed independently of the union. This was a powerful argument against secession. Why Pulliam insists it was merely “self-serving” is a mystery. It clearly was in the service of the preservation of the union. To my knowledge, scarcely any founder argued that the Revolution placed the separate colonies in the state of nature with one another. No early state case contesting the matter of citizenship ever made this argument.
At any rate, Madison in The Federalist does not argue that the Constitution was ratified by the states—here Pulliam needs to reread his Federalist once again. Rather, Madison points out that the Constitution was ratified by state conventions elected by the people. It was therefore not ratification by the states, but by the people of the states. If the people of nine states agreed to ratification then the Constitution would come into force. The point: the Constitution was not, in any sense, a compact of the states.
14th Amendment Follies
Pulliam rehearses another comical argument, quoting Federalist 45: “the states will retain under the proposed Constitution a very extensive portion of active sovereignty.” The states will retain a “portion” of sovereignty, albeit “a very extensive portion.”
What, I ask, is a “portion” of sovereignty? Sovereignty means complete and plenary power. It cannot be apportioned or divided. This means that the states will not be sovereign. There will indeed be something like a “dual sovereignty,” where the states have reserved “police powers,” but the states will have none of the powers normally ascribed to sovereignty: the power to declare war, coin money, make treaties with foreign powers, etc. These all belong to the national government and in the case of conflict, Article VI gives the national government supremacy over the states. A portion of sovereignty is not sovereignty. A compact of sovereign states did not create the union. We know this for a simple reason: the states were never sovereign.
It must always be kept in mind that ultimate sovereignty rests with the people and the people always retain their sovereignty—it can never be ceded or delegated. The people delegate certain specified powers to the government to be exercised for their “safety and happiness.” The ultimate expression of the people’s sovereignty, of course, is the right to revolution which the founders understood not only to be a natural right but a natural duty as well. The Declaration was a world historical event: sovereignty rested on the people, not the divine right of kings. The self-evident truth is that “all men are created equal” meaning vox populi vox dei (“the voice of the people is the voice of God”) had replaced divine right of kings. Republican government and the rule of law could now be derived from the “consent of the governed” and the natural right of revolution would be the ultimate guarantee of the people’s sovereignty.
Pulliam also is egregiously mistaken when he says the Declaration had nothing to do with the 14th Amendment. In my original piece, I quoted a statement from Representative Thaddeus Stevens, a prominent supporter of the amendment who thought otherwise. I could have quoted a multitude of similar statements, but I cannot forbear quoting the Speaker of the House for the 39th Congress, Schuyler Colfax. After the amendment had passed both the House and Senate, Colfax praised it as the work that Lincoln had begun. After reading section one, he said: “It’s going to be the gem of the Constitution.”
“I will tell you why I love it,” Colfax continued:
It is because it is the Declaration of Independence placed immutably and forever in our Constitution. What does the Declaration of Independence say?—that baptismal vow that our fathers took upon their lips when this Republic of ours was born into the family of nations. It says that all men are created equal, and are endowed by their Creator with certain inalienable rights, among which are life, liberty and the pursuit of happiness; and that to secure these rights governments were instituted among men. That’s the paramount object of government, to secure the right of all men to their equality before the law. So said our fathers at the beginning of the Revolution. So say their sons to-day, in this Constitutional Amendment, the noblest clause that will be in our Constitution.
So much for the irrelevance of Abraham Lincoln and the Declaration! Section one of the 14th amendment incorporates the Declaration! And, if we credit the Colfax and many other members of the 39th Congress, that is the manner in which section one must be interpreted.
Pulliam claims that moral authority is embodied in the text of the Constitution solely because it was authorized by the consent of the governed. (Hasn’t Pulliam argued throughout that the Constitution is a compact of the states? Which is it?) In any case, he upbraids me for not mentioning the Obergefell case as an example of how “natural law” as a font of natural rights can miscarry. I never argued, of course, that the Ninth Amendment was a “font” of natural rights. I simply pointed out that Pulliam, following Bork, claims to be a constitutional textualist but insisted on ignoring the fact that the Ninth Amendment says plainly that there are “other” rights, not enumerated in the Bill of Rights, that are “retained by the people.” An original intent jurisprude cannot ignore this text simply because he believes that “unelected judges” may abuse their power. All judging risks abuse; that doesn’t mean that we should abolish judging because it may be abused.
Community Conscience No Match for Activist Judges or Legislatures
Pulliam seems to suggest that the “community’s ‘conscience’” should be a judge’s guide in cases like Obergefell, rather than natural law principles. And the legislative branch, rather than unelected judges are better placed to assess the conscience of the community. One wonders, however, whether community conscience is any less amorphous a standard than he claims natural law to be. As a matter of original intent, Pulliam’s descriptions of natural law have nothing in common with the way the founders understood natural law! Imagine John Adams or James Wilson saying that natural law was nonsense or incapable of any meaning! How is it possible to claim the mantle of the founders while ignoring and ridiculing their main contribution, a reliance on the “Laws of Nature and Nature’s God?”
In Obergefell, Justice Scalia argued that his principal objection was that the court, rather than the legislative branch, was making the decision about same-sex marriage. It was properly a decision for the legislature to make because it was a policy or moral question, not a judicial one. Scalia said he was indifferent to the moral argument; his only concern was which branch of the government should have the authority to decide. If the legislature approved same-sex marriage then, like the majority approving abortion, it was legal and constitutional, because it expressed the conscience of the community (or at least that was the presumption).
On issues of morality Justice Scalia (and Judge Bork, and Chief Justice Rehnquist—to say nothing of Pulliam) believed that reason could play no role in arbitrating “value-disputes.” No one could simply prove that one “value-system” was better than another. The world, as Justice Oliver Wendell Holmes said, was made up of nothing but “fighting faiths” vying for domination in the marketplace of ideas. Reason cannot tell us which fighting faith deserves to win, because these “faiths” proceed from nonrational or subrational choices, various forms of ideology, private interests, religion, economic class, etc. In democracy, therefore, it is just to leave decisions of morality to the “moral conscience” of the majority. This is a kind of moral relativism that denies that there are any standards of morality that can be discerned by reason or reasonable choice. Conservatives often speak of tradition and traditional morality as the ground of morality which is supported by mainstream religions. I suspect that something like this is what Justice Scalia (and Pulliam) mean by “conscience of the community.”
I agree that Justice Kennedy’s majority opinion in Obergefell was utterly dishonest, arguing how important marriage was to the fabric of American life. And so it is! There is no doubt that the family is integral to the foundation of free society. But does that include all types of family structure? Polygamy? Same sex? Polyamory? Or is it simply a matter of indifference to be left to the conscience of the community (whatever that is)?
Natural law or natural right easily answers that question: marriage is between a man and a woman; the family begins with the distinction between the sexes. Community conscience cannot be the standard because the conscience of the community is ever evolving whereas the principles that brought us our Constitution are permanent, even as they are subject to prudential adaptations to meet different circumstances. It is the ever-evolving community that provides pliable and unlimited standards of the kind that encourages judicial activism. While Pulliam has his wary eyes on the activist judiciary he ignores the activist legislature which, according to the founders, was the most dangerous branch. I have my eyes constantly on the Constitution—I invite Pulliam to join me!
The principles of the Declaration are derived from “the Laws of Nature and Nature’s God.” That is, those principles are derived from reason and revelation. No founder believed that the principles of morality could not be addressed by reason—that it had to be left to the “conscience of the community” (or the traditions of the community) as expressed in majority rule. Natural law placed moral limits on the majority—the majority, for example, could not approve anything that violated the laws of nature. Madison even went so far as to say that unanimous consent could not approve violations of the laws of nature. If the majority voted to approve slavery, for example, it might have the force and power to enforce its will, but it never have the moral authority to do so even if it is approved by tradition or the conscience of the community. It is natural law and natural right that became the new source of moral authority for America, not tradition or longstanding “moral conscience.”
I invite Mr. Pulliam to give a single quotation from any of the founders who said that the Declaration did not supply the grounds for moral reasoning or that the principles of the Declaration did not supply the foundations of the Constitution’s political and constitutional morality. Imagine George Washington or John Adams arguing that “liberty” is merely a “value judgment” that cannot be supported by reason or is only an “idiosyncratic preference” that someone attaches to something that strikes his fancy but which has no real intrinsic value. It is a simple fact that Pulliam cannot begin to articulate a jurisprudence of original intent if he denies the one thing that animated all of the founders: that Declaration provided the authoritative source of the Constitution’s authority, both moral and political.
Adjudicating Unenumerated Rights Requires Natural Law
I said I expected to be ridiculed when I referred to the famous “mystery passage” in Casey—those words penned by Justice Kennedy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This described what I said was a perfect summation of what Madison called “the sacred rights of conscience,” a right that does not appear in the Constitution, but one that is essential to freedom and free government. This right does encompass the right to confront the “meaning of the universe, and of the mystery of the universe.” These are things that an individual must do to determine how best to fulfill his duty to God in the manner that he believes will be most pleasing to God. Let Pulliam deny this as a fundamental right! I await Pulliam’s argument that government can intrude on an individual’s right to conscience and force him to expose his most innermost thoughts about the mystery of being as it relates to his worship of God.
If one is charged with the crime of not revealing his innermost thoughts, to what right will he appeal as protecting his rights to conscience? It is not in the text of the Constitution! Is it a part of the free exercise of religion? Not according to Madison. What do we do now? Rely on the “conscience of the community?” That is not in the Constitution either! Perhaps there are, after all, “other” rights not listed in the Bill of Rights—like the “sacred right” of conscience—that need to be exerted as part of the privileges or immunities that belong to U.S. citizens.
Pulliam complains that I did not explain why I did not believe that abortion falls within the ambit of the mystery clause. I did not because I thought any intelligent reader could see that: it violates the right to life, one of the natural rights of the Declaration and a right incorporated in the Constitution and belonging to the privileges or immunities of U.S. citizens. It is a precept of natural law written into the plain text of the Constitution. It is a natural right—it does not have to be approved by the vote of a majority or the conscience of the community. According to the Declaration, it is a right—a natural right intrinsic to human nature—that has been endowed equally upon human beings by the Creator. Was that so difficult?
Contrary to what Pulliam seems to think, I do not believe that a judge can apply natural law principles in a decision, unless those principles are reflected in the language of the Constitution. Pulliam praises the Supreme Court’s decision in the Slaughterhouse Cases (1873) as a model of constitutional interpretation. His main reason for doing so was the Court’s narrow reading of the “privileges or immunities” clause of the 14th Amendment. This narrow reading, Pulliam alleges, was a factor in curbing judicial activism because otherwise judges could have read virtually anything into such vague language. What the courts have done with “due process” and “equal protection” is an indication of what they might have done with the even more imprecise and capacious language of the Privileges or Immunities Clause. He strongly criticizes Justice Clarence Thomas for his efforts to revive the clause which was justly interred in Slaughterhouse.
Thomas believes, along with many scholars, that the Privileges and Immunities Clause was intended to be the substantive core of the amendment, and had it not been mutilated in Slaughterhouse much of the judicial activism we experience today would have been forestalled. Justice Thomas is correct and the framers of the 14th Amendment clearly argued as much. The definition of privileges or immunities was not as unknown or as unknowable as Pulliam leads us to believe.
In my last essay, I argued, in agreement with Justice Bradley’s dissent in Slaughterhouse, that the right to choose an occupation freely was a necessary means to the acquisition of property and therefore one of the privileges or immunities of U.S. citizenship. Louisiana had created a 25-year monopoly for slaughtering in the city of New Orleans. The Supreme Court alleged there were no federal rights, privileges, or immunities violated by the state law. It is true that the Constitution does not forbid the states to create monopolies nor does it protect the right to choose an occupation. The right to property is, of course both a natural right and a constitutional right. It was always described by Madison as the comprehensive right, the right that includes every other right.
In his famous essay “Property” published in 1792 shortly after the ratification of the Bill of Rights, Madison argued that monopoly was an assault on the right to property as was the denial of the free choice of an occupation. As a means to secure the right to property, Madison argued, the right to choose an occupation was a civil right (or a “privilege or immunity”) that government must protect if it is to be accounted just. Thus for any right that is protected, the means to accomplish that right must be protected as well. The means necessary to secure rights might well be denominated “civil rights,” those positive rights enacted by societies as a means to secure natural rights protected by the Constitution. If the ends are conceded—the means must also be conceded. Otherwise the enumerated rights would be nullities.
Unenumerated rights are necessary to secure enumerated rights. This is the reason that the attempts of Pulliam and Bork to excise the Ninth amendment’s protection of “other” rights “retained by the people” from the Constitution under the palpable fiction that this language is too obscure or unintelligible is purely an act of judicial activism. I suggest that Pulliam should have titled his article “How to take the Constitution Out of Constitutional Law.”
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