Saturday, July 3, 2010

Does the Constitution Incorporate the Declaration of Independence? Why Does It Matter?

This is a little piece I worked on but never published. I have written very similar blog posts. I just posted this to my other new group blog.


King of Ireland said...

I think I remember hearing you state some things were "Undeclarational" a while back. You seem to be changing sides on this one.

What is so hard to understand about the concept that the DOI was an explanation for the rationale for rights that were to be protected with the limited government created in the Constitution?

Do you dispute this connection?

King of Ireland said...

I went and read the linked New York Times article. I did not know they were using this as a legal strategy. I thought it was more of a philosophical debate.

This is where they lose me. Their view of sola scriptura does not allow the to see that discussions about forms of government is not part of the Bible. Nor does it have to be to be a part of Christian theology that incorporates natural law that sees merit in looking to the wisdom of the ages as a guide in these matters.

Their more general arguments about sinful nature and such are valid. But when they try to find evidence in the Bible for 3 branches of government they lose credibility.

Not to mention your main point that certain streams of Christian morality(I would include Aquinas if I am reading him right) place the emphasis on loving your neighbor enough to value his right to do what he wishes.

Tom Van Dyke said...

LAST MONTH, A WEEK before the Senate seat of the liberal icon Edward M. Kennedy fell into Republican hands, his legacy suffered another blow that was perhaps just as damaging, if less noticed.

Oh, yeah, you're gonna get the unvarnished truth from an article that starts like that.

The Texas standards are now in. Culture war [or at least this battle] is over.

Read them for yourself, and don't take anybody else's word for what's in there.

Jon has an argument within the narrow scope of federal law and interpreting the Constitution; I would add there's more to a nation, and America, than that.

Coolidge rebuts many of the points, not in the least that the declaration was more than the work of 3 "key" Founders. It was the Continental Congress---the "people"---who added more God.

And as King points out in his first comment, "the right to have rights" precedes any rights in the Constitution. It is the origin of the American understanding of "the right to have rights" that Coolidge [and the Declaration] limns.

Enlightenment "social contract" theory means there are no such things as "unalienable" or "unenumerated" rights, only rights you can wrest from the government. James Wilson explicitly makes clear this American disagreement from Blackstone and Burke's English understanding of rights.

Jonathan Rowe said...

Actually King, I do believe that things can be "undeclarational." My point was incorporating the organic law of the DOI into constitutional interpretation doesn't vindicate an socially conservative Christian political theology.

Tom Van Dyke said...
This comment has been removed by the author.
Tom Van Dyke said...

Culture war stuff aside, the Declaration, if read as literal law, would open the door to secession:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another...

However, as a normative understanding of what "rights" might be per the 9th Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

common sense would dictate that the Declaration can and should be used as a reliable guide, since the Founders had just shed blood, sweat and treasure for those rights.

The rest is legalism.

King of Ireland said...

"My point was incorporating the organic law of the DOI into constitutional interpretation doesn't vindicate an socially conservative Christian political theology"

I would tend to agree with you.

King of Ireland said...

"The rest is legalism."

Dr. Hall linked an article he wrote about James Wilson in the comments section of the last post Jon did that showed how big an emphasis he placed on the philosophical underpinnings of the law and rights theory before he even got into the legalism of it.

I was discussing this with a public defender the other day. It does seem that many lawyers are educated with this same emphasis in mind.

Wilson was actually a brilliant dude. George Washington paid him way above the going rate to tutor his nephew in the law. He was not going to settle for anyone else.

King of Ireland said...

Nice link to Libertarian Christianity. He supposedly cites Aquinas. I think I will do a post about his view of rights that is different than today's self obsessed version.