Sullivan and the Declaration v. Constitutional Positivism:

Andrew Sullivan has an interesting debate going on with the NRO crowd on the nature of conservatism and the conflict that lies therein between conservatism of "doubt" v. "faith." (See the original article that started this debate).

Sullivan takes the side of "doubt" and the religious right (the "theocons") against whom Sullivan argues are on the "faith" side. Sullivan understandably sees pluralism generally and religious pluralism particularly as threatened by the theocons and their conservatism of faith. The other side has argued that the metaphysics of the Declaration probably comes down more of the side of "faith" than "doubt." As a reader of his put it:

Finally, you suggest in your original essay that the Constitution can provide just as strong a foundation for freedom as God. But you also acknowledge that the Constitution is derived from the principles of the Declaration of Independence, and the Declaration in turn is derived from the founders' belief that a Creator endowed us with certain inalienable rights. In other words, the Constitution is the implementation of natural law. The Constitution does not create a new ethical system with its own philosophical basis for morality and freedom. Thus, the attempt to hold it up as an alternative to natural law or God, standing on its own, strikes me as a confusion of the moral authority from which the Constitution itself flows.

Or as Jonah Goldberg put it:

The U.S. Constitution was founded in a climate rich with larger philosophical and metaphysical assumptions — assumptions that, if held today, Sullivan would probably dismiss as assumptions of “faith.”

Sullivan properly notes that "[t]he debate about what really motivated the Founders is a deep and complex one," that "there's obvious disagreement about it," and that he didn't want to get into that disagreement (that's what I'm going to do!). Sullivan's response was:

But my point would be that, even if the Constitution is buttressed by some vague deism or natural law, it has subsequently achieved an authority of its own. It has worked so well and lasted so long that its philosophical roots are less salient than its record of under-girding arguably the most successful experiment in human society in history. That's good enough for me. I suspect it's good enough for an overwheming majority of Americans as well.

Interesting. Sullivan's position however could cut the other way as well. Sullivan takes a position similar to that of his old mentor Harvey Mansfield regarding the Constitution v. the Declaration. In fact Sullivan earlier linked to this article by Thomas West about the views of Harry Jaffa v. Mansfield's and understanding the Constitution through the lens of the Declaration.

But what's interesting is why Mansfield takes the position he does. Similar to Robert Bork's position, it's because the Declaration is a document of ideal liberalism; it makes broad rhetorical references to liberty, equality, and the pursuit of happiness. We should easily be able to see how the Declaration's ideals can cut against religious conservatives' "view of what is moral or good," especially if they believe in using the power of government to impose that vision on society. Reading the Constitution -- a document full of delicate procedures and technicalities -- detached from the ideals of the Declaration, however, makes it more logical and likely that judges come down against liberty, equality, and happiness in any particular circumstance.

Take religion, for instance. In his original article, Sullivan quotes Rich Lowry:

"The secularist view misses that freedom is grounded in truths, in the God-given dignity of man as a rational creature and in our fundamental equality. This is why the pope could say, 'God created us to be free.' If the idea of freedom is detached from these truths, it has no secure ground, because the strong will inevitably attempt to dominate the weak unless checked by moral truths (see slavery or segregation or communism)."

To which Sullivan responds:

But what if Lowry's fellow citizen is an atheist? How can the atheist be persuaded to consent to truths that are only solidly grounded in a faith he doesn't share? And what happens when even those who share the same faith disagree profoundly on its moral and political consequences? Lowry seems to forget that men of Christian faith strongly opposed and backed slavery and segregation--and used Biblical texts to do so.

But if we have a "strict constructionist" view of the Constitution that views the Establishment Clause as a "federalism" only provision, states are free to establish Christian Churches and other laws which flatly violate the conscience of those who don't share that faith. The natural law of the Declaration, however, holds that all men -- including those who would worship no God or twenty Gods (in Jefferson's words, "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination") -- possess unalienable free and equal rights of conscience. And these are rights that all governments -- federal, state, local, and international -- must respect. The natural law of the Declaration demands that all of these faiths be given the same legal rights as orthodox Christianity. The Constitution, unmoored from natural rights idealism, doesn't take us this far.

The bottom line is, despite the fact that Declaration invokes a vague "Nature's God" in order to give rights a "firm" grounding (and keep in mind that Nature's God was never identified as the God of the Hebrew Scriptures), which may in turn anathematize atheists and polytheists to some minor extent, reading the Constitution through the lens of the Declaration, as opposed to a strict positivist constitutionalism, more likely leads to results of pluralism, tolerance, liberty, and equality that we (small l) liberals desire.