Wednesday, November 10, 2004

Discussion on the Declaration & Public Policy on Dust in the Light:

Somehow a discussion thread that I participated in on this thread on Justin Katz’s Dust in the Light turned towards the Declaration of Independence and the proper ends of government (okay—I admit, I turned the discussion that way). To which, Justin responded with this post (in which he linked to my blog, thanks Justin) which raises some interesting questions. Note, when I invoked the Declaration of Independence, I also prefaced my invocation with an explanation of the natural rights theory which I think the Declaration reflects. And in doing so, I quoted Allan Bloom’s The Closing of the American Mind (because Bloom’s quote eloquently captures the idea). Anyway here is the quote from Bloom’s book re: the proper ends of government:

Government exists to protect the product of men's labor, their property, and therewith life and liberty. The notion that man possesses inalienable natural rights, that they belong to him as an individual prior, both in time and in sanctity, to any civil society, and that civil societies exist for and acquire their legitimacy from ensuring those rights….p. 165


(Note: In reading the book, Bloom, like the other Eastern Straussians doesn’t wholly embrace this creed like, say Harry Jaffa does. Rather the Eastern Straussians think of it as a sort of “half-truth.” But certainly a better place to rest our public institutions than nihilistic relativism.)

Here are a few of Justin’s questions on the topic:

1. The question remains: what does it mean to ensure a right to life, liberty, and the pursuit of happiness? The Declaration, itself, demurs, stating simply that the people can lay their government's "foundation on such principles" as seem most promising "to them." So, again, who decides what policies are "most likely to effect [citizens'] Safety and Happiness" for the better?


I’m not sure if anyone “decides” the "meaning." Isn’t that like asking, who “decides” what it means that 2+2 = what? In order for the principles of the Declaration to have objective meaning (like an equation), there are a great deal of questions that will be “answered” already outside of subjective decision making. Whomever it is that gets to answer that question should be bound by the objective principle.

2. Who has the final say? Jon suggests that judges do, but his conclusion presumes that the legislative and executive branches are being objectively negligent.


Now that’s a different question. We are not asking what the answer to 2+2 =, but rather who gets to answer the question. I would argue that all three branches of government do. (Note: I made a similar, but more detailed, argument here). I’m all for legislatures and executives securing natural rights. Jefferson’s VA Statute on Religious Freedom is an excellent example of natural rights secured by a state legislature. But if the legislature fails to act, and if that question should find itself in front of a court, I have no problem with a court effectively answering the question, -- and finalizing the answer either nationally, or for a particular state -- so long as they do so consistent with the text of the Constitution and the proper “ends” of government, as understood by the Declaration. And if the question is one that involves equality or liberty of the individual, then such question, probably has a proper basis being before the Court.

Then again, there is always the question of whether it’s a good practical idea for the Court to step in and answer that question when society isn’t ready for it. Look, a court may be able to make a good theoretical argument about why such a national policy based on a particular Constitutional text (probably the 14th Amendment) and its underlying policy (liberty or equality), should be implemented. Take Brown v. Board of Edu., and Loving v. VA., for instance. These cases were decided in 1954 and 1967, respectively. Yet, they were based on the 14th Amendment which was ratified in 1868. Many conservatives have come to accept that both of these cases were consistent with the proper understanding of the 14th Amendment. Well, if that’s the case, then theoretically, either of these cases and their respective outcomes could have been decided in 1869. But perhaps, it wouldn’t have been a good idea for the Court to have stepped in, at that moment, and effected that change at that time, because perhaps the country wasn’t ready for such drastic social changes then. (We, as a nation, getting over the civil war, and engaging in Reconstruction, already had enough on our plate to deal with).

My mind isn’t entirely made up regarding whether it would ever be proper for the Supremes to rule gay marriage a national right based on the presently existing Constitution. But one thing is for sure, if they do, it shouldn’t be until the country is more ready for it, like for instance, when a majority of the states have already recognized gay marriage. How many sodomy laws were on the books when Lawrence was decided? 13. How many anti-miscegenation laws were on the books when Loving was decided? 16. It would thus be appropriate for the Court to step in and resolve the gay marriage issue, on a national level, when around ALL but that number of states have already recognized it.

Orin Kerr’s quote from Jack Balkin is spot on re: court’s properly resolving social issues, on a national level:

Judges are sort of like place kickers in football. Most place kickers are pretty bad at making an open-field tackle to stop a speedy running back returning a kickoff. But place kickers can help pile on after the other players have tackled or slowed down a runner. That is sometimes how I imagine courts and their relationship to social change: They see the running back lying on the ground, groaning under the weight of a huge pile of linebackers. The judges say to themselves, "It's time for us to do some justice!" and they throw themselves on the pile.


Justin also questioned whether Bloom’s quote accurately reflected the theory that underpins the Declaration:

Note that Bloom sublimates life and liberty to another right that isn't even in the Declaration: property. Perhaps we have succeeded in finding an essential difference of belief of the sides in this debate; I'm surely not alone in believing that — far from being subordinate to property — life, liberty, and especially happiness don't ultimately require it.


Look, I’m willing to say that life, liberty, and property all ought to be given equal weight. I think Bloom’s point was that the United States was founded as a commercial republic. And that the focus of government was shifted from the classical (Greco-Roman) and Biblical “higher” notions of virtue and the soul, and put squarely on commerce (this was necessary because man has a passion in self-preservation, and a commercial republic was the one that best, in fact, the only one, that enabled man effectively, to meet such needs). My point wasn’t to demonstrate that property was superior to life & liberty, but merely that it was one of the top founding concerns, indeed concerns in which governments are instituted among man to secure. If I had to list them all, I would list 5: life, liberty, property, pursuit of happiness, and equality.

This is really a topic for another discussion but it can be demonstrated by reference to founding documents like the Federalist papers, the writings of James Madison, and the writings of the philosophers who most greatly influenced our framers, Locke for instance, that “property” is one of those “unalienable” rights implicit within the Declaration and that government must to secure. Why was property explicitly left out I’m not exactly sure, but a law professor of mine gave an odd but probably accurate explanation: Our framers were greatly influenced by the writings of English-Scottish philosophers. And that rhetorical style had its own quirks, one of which was that things would often be categorized into threes: “life, liberty, and property” or “life, liberty, and the pursuit of happiness.” Not, “life, liberty, property, and the pursuit of happiness.” Having four things listed instead of three simply didn’t flow right to the ears.

But, I will say that perhaps the fact that property was explicitly left out was a mistake in drafting of the Declaration; indeed, I had a radical leftist Con law professor who argued that because property was left out, such a right wasn’t as important as say, equality. And I would caution any conservative against arguing that property is not a vital concern that governments must secure. Indeed, there exists some tension between “equality” on the one hand, and “property” on the other. In the modern era, we argue as to what the proper understanding of “equality” is: “equality of opportunity” (the “classical” free market understanding) or “equality of result” (the Marxist-egalitarian one). The only way to get “equality of result” as a proper understanding of equality is to wholesale throw out “property” as an unalienable right that government ought to secure.

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