Which Will It Be?
“We Hold These Truths to be Self Evident…”
“From Each According to His Ability…”
WHICH WILL IT BE?
Citizens of the United States are at the crossroad of liberty and statism. Do we accept the limited growth and stifled opportunity guaranteed by a bloated federal government, ever growing group entitlement “rights” and debt that cannot honorably be repaid or do we reassess and once again embrace the founding principles that gave us the American Dream and American Exceptionalism for two hundred years.
“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 rights 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…”
Although Thomas Jefferson wrote the preamble of the Declaration of Independence in 1776, he also pointed out that he had borrowed the ideas, if not the wording, from others. Eighty some years earlier, English philosopher John Locke discussed “natural rights” in his Second Treatise on Government. Locke identified these rights as being “life, liberty, and estate [property]” and argued that such fundamental rights could not be surrendered in the social contract. Locke’s treatises were primary references for the preeminent political philosophy of our founding era. It’s not likely that any of the delegates that signed the Declaration of Independence, or for that matter, any of those that attended the federal convention that produced the Constitution, were not well schooled in Locke’s work.
James Madison, the acknowledged father of the Constitution, and, as did nearly all statesmen of his era, believed that in addition to natural rights, there are also “social (contract) rights” that arise neither from natural law nor from “positive law” (legislated or statutory law). He believed that these social contract rights, represented by the Bill of Rights, come from the social contract (or compact) from which a government derives its authority. Notable is the fact that Madison believed that a bill of (social contract) rights should not be necessary in the new constitution because the federal government’s powers were so strictly enumerated and separated between the three branches.
The Founders believed there was a hierarchy of rights: natural rights that all individuals posses simultaneously as a condition of their humanity and provable by reason; social (contract) rights that can be enumerated as in the Bill of Rights, but otherwise should be implicit in a governing formula that guarantees the preservation of natural rights and therefore encourages a free individual’s consent to be governed (the social contract); and finally, positive or legal rights that are conveyed by statutory law passed by a duly authorized governing body and reflective of local customs and beliefs. The clearly obvious intent of the Founders was that legal rights can neither nullify nor infringe upon social contract rights nor can legal rights or social contract rights nullify or infringe upon natural rights. While the Declaration of Independence declares the self-evident truth of natural rights, Jefferson’s Notes on the State of Virginia, The Federalist Papers, Madison’s Notes on the Debates in the Federal Convention of 1787, the Congressional Record for the 1st session of Congress in 1789 and, indeed, the Constitution itself all point to the Founders’ unqualified belief in this hierarchy of rights.
Revisionists that would prefer to ignore or deny the concept of natural rights point out that nowhere in the Constitution is there any reference to either the Declaration of Independence or natural rights. But why should there be if natural rights are self-evident and were already declared in 1776 in the first founding document? This assumption is underscored by Madison’s position that not even a bill of (social contract) rights should be necessary in the Constitution. To make his point, when presenting a draft of the Bill of Rights to the House of Representatives in June of 1789 (eleven of the thirteen states had ratified and the government was in place), Madison offered a preamble to the Constitution that identified the natural rights that must be preserved by the Constitution and then suggested it was unnecessary:
“…That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety… …It may be said, in some instances they [Natural Rights] do no more than state the perfect equality of mankind; this to be sure is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution…”
James Madison, 1789 (Annals of Congress, House of Representatives, 1st Congress, 1st Session-June 8)
Abraham Lincoln, as did nearly all statesmen of his era, believed that the Declaration of Independence was a founding document of the United States and that the Constitution could not be properly interpreted without it. Indeed, the Constitution was written specifically to preserve and protect the natural rights of every citizen of the United States:
“There is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness. “
Abraham Lincoln, 1858
“…That something, is the principle of "Liberty to all"—the principle that clears the path for all—gives hope to all—and, by consequence, enterprise, and industry to all… …The expression of that principle, in our Declaration of Independence, was most happy, and fortunate… an apple of gold to us. The Union and the Constitution are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture…”
Abraham Lincoln, 1861, “Fragment on the Constitution and Union”
Compare Madison’s and Lincoln’s beliefs with those of President Barack Obama and Supreme Court nominee Elena Kagan:
“Implicit in the [Constitution’s] structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology or theology or ‘ism,’ any tyrannical consistency that might lock future generations into a single, unalterable course…”
Barack Obama, The Audacity of Hope
“I don’t have a view of what are natural rights independent of the Constitution…”
I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws,
but my job as a justice is to enforce the Constitution and the laws.”
Elena Kagan, Supreme Court Nominee during Senate Confirmation Hearings
Our president believes that absolute truth and ordered liberty are incompatible. This is consistent with the modern liberal view of “moral equivalence”, that there is no hierarchy of rights or truth and that the essence and meaning of the Constitution is changeable. It is a “living constitution” that should evolve with society’s discovery of new injustices and social needs. Contrast this view with Madison’s position that the idea of natural rights “…is an absolute truth…” In full context of his June 8, 1789 speech to Congress, this belief is presented as if it were a redundant statement, an apology for restating what simply is. (“We hold these truths to be self evident...”)
Our Supreme Court nominee has “no view of what are natural rights independent of the Constitution.” But of course, there is no reference to natural rights in the Constitution…because Madison (as did most of his contemporaries) felt a natural rights preamble would be redundant and unnecessary. Ms. Kagan seems only willing to consider the social contract rights enumerated in the Bill of Rights and subsequent amendments because they happen to be part of the Constitution. President Obama often laments that the Constitution is a document of “negative rights”, only limitations on government. He would prefer that it also declare what he calls “positive rights”, what the government should do for citizens. They both fail to grasp the fact of a hierarchy of rights and essentially dismiss natural rights and their preservation… the concept that so motivated our Founders and President Lincoln.
President Obama was formerly a university lecturer on Constitutional law. Ms. Kagan was formerly Dean of Harvard Law School. The question arises: Did they ever study the governing philosophy of our Founders? If they did, they must have rejected it. If studied and then rejected, rejected for what? Either way, these beliefs suggest serious errors and omissions in their respective educations. Indeed, they are presumed to be Constitutional scholars. Presidents and Supreme Court justices are, in fact, temporary fiduciaries of the exceptional social contract crafted by our Founders. Can these beliefs co-exist with a social contract that preserves our natural rights?
By definition, natural rights exist simultaneously for all people individually. By definition, the natural rights of one individual cannot impose an UNEQUAL obligation on someone else. By definition, natural rights must be independent of religious faith. The faithful may believe that natural rights are divined by God. Those without faith, however, must embrace the notion, indeed as Madison believed, the “absolute truth” of natural rights or the social contract that preserves these rights breaks down…as we have witnessed increasingly over the past fifty years. What is the millennia proven Golden Rule if it isn’t a command to respect the natural rights of others?
In 1932 federal spending was only 5% of Gross Domestic Product. This year federal spending will exceed 25% of GDP. Every Supreme Court in history, up until at least the 1930’s, would have dismissed out of hand as unconstitutional all of the major legislation passed in the last two years: TARP, Stimulus, ObamaCare and Financial Reform. Note that the “rights” conferred by ObamaCare (and Medicare and Medicaid) are legal rights, the lowest in the Founders’ hierarchy of rights. What’s worse is that these are a relatively new form of redistributive economic rights…rights that the Founders and Lincoln would find to be not only unconstitutional but patently preposterous. (“From each according to his ability, to each according to his need.” Louis Blank, 1840, writing for the socialist movement.)
Congress will write massive and obtuse legislation that limits freedom and imposes obligations on future generations because it can…with a sympathetic (or at least pliant) executive branch and a judicial branch that ignores what the constitutional law created by our Founders was designed to protect. This is how we get federal wetlands regulation of private property…because migratory birds are known to cross state lines.
"Economic thinkers have recognized for generations that every person has two ways to become wealthier. One is to produce more, the other is to capture more of what others produce.” Jonathan Rauch, 1994, Government’s End
There cannot be a "right" to healthcare because it requires the force of government to make it so... For any individual to have a "right" to healthcare means that someone else, somewhere, sometime is forced by government to pay for this "right". It is precisely this understanding that led the Founders to limit the federal government’s powers in the constitutional structure...because the Founders knew that the federal government would have a monopoly on power. We can “walk with our feet” from one state to another in search of more liberty or larger social safety nets as we choose. We have only one federal government. But when it is all said and done, our politicians only do what the rest of us ask or permit them to do. Elections do matter. So WHICH WILL IT BE?
Required reading:
“The New New Deal” by Charles R. Kesler, May/June 2010 edition of Imprimis.
