"Moreover, it is important to point out that a country founded by and for Christians does not a Christian founding make. The “real whig” ideology that inspired the colonial protest movement of the 1760s drew on classical and early modern rather than Christian sources; there is very little scriptural authority for the maxim “no taxation without representation.” Similarly, the doctrines of mixed and balanced government, the separation of powers, and all the other principles of prudential politics association with the Federal Constitution were drawn from the writings of European philosophers rather than biblical prophets or exegetes."
I’ve made a similar point in the past. Now I’ll suggest that perhaps he and I miss the mark in a certain respect. Representation, balanced government, and the like are indeed “prudential politics” as Staloff says (and I recently argued in another comments section). Whereas private rights (life, liberty, and estate) are moral imperatives. They are the political principles that correct government seeks (by prudential means) to achieve.
We should expect that both religious and secular ethical doctrines weigh-in on the purpose of government (unalienable rights) while political science discovers the prudential means to “secure these rights”. Thus, it may be unfair to demand that religion or natural law mandate “checks and balances” or the correct form of “representation.”
I wonder if we can reduce the question “is America’s founding Christian or not” to the question of individual rights: derived from religion or not? Of course, this makes the Lockean liberal principles the foundation of the republic’s founding and not a res publica. Not everyone will agree with me on that. Comments?
Thursday, August 18, 2011
Staloff on the notion of a Christian Founding
Darren Staloff, in the article that Jonathan mentions below, has an interesting comment on the question of America's founding:
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How are you using/meaning "res publica"?
There is a school of historians who argue that the republic (the pubic thing, or res publica) is the political end in-itself of the American Revolution--an end that requires the sacrifice of private interests for the common good. Whereas the Lockean analysis suggests that the “public thing” is only a means to protect the “private thing”, i.e. individual liberty.
If the republic is the "good" that all actions aim, Staloff is right to ask do we find this in the Christian religion or elsewhere. If individual rights are the "good" and the republic is only the prudential means, it is then a part of the special science of politics and not fundamental ethical philosophy or religion.
I don't see a conflict. All Americans view the Republic as a "common good" that protects their individual life and liberty.
Who is to protect the citizen's life and liberty? Those in public office/service who are supposed to sacrifice for the 'common good'. The President vows to uphold the Constituton. The Congress vows to represent 'the people". The CIA/FBI vow to protect our laws and interests. The military vows to defend our country against attacks. Police vow to protect their local communitees, ETC.!
Each position is a self-chosen form of serving the "common good", This is part of the social contract (not an organistic view of society). The government's role is to provide justice when there are conflicts of interests and prevent abuses of power.
Ethical theory seeks "the universal", but the universal "shoulds" cannot be imposed on the individual from the outside, without co-ercive means, as people are free moral agents and there are various contingencies that impinge on desires/goal/purposes, choices/values and outcomes/commitments.
Science wants to produce outcomes that can be measured, but humans are not robots that can be programmed, nor should they be and this is where prudential government is a necessary check to political science and politics.
You and I “view the Republic as a ‘common good’ that protests our individual life and liberty.” I believe the Founding Fathers basically viewed it that way.
Jason,
I said, "view the Republic as a "common good" that PROTECTS their individual life and liberty."
you said,“view the Republic as a ‘common good’ that PROTESTS our individual life and liberty.”
????? We are a "collective" as a nation, but "collectives" are made of individuals, whose choices affect the nation one way or the other. And that protects liberty for all of us.
But, your suggestion that we "protest" our individual life and liberty? Was that a typing error? If not, are we saying the same thing?
I was copying your words and it was a typo.
Just checking ;-)! Thanks.
FRAMING THE DISCUSSION
When the questions being asked are about America's Founding as a Christian nation, the participants are stuck back some 235 years or so at the onset. By now, it has been pretty well established that there is a division--no conclusion one way or the other is going to be settled. We WILL be divided.
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Pretty much, that makes the issue of America being founded as a Christian nation irrelevant.
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I think the question, "Was America founded as a divided nation?", is more appropriate. And, the answer is, "Yes, it was."
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More to the point of America's Founding has to do with the DOI and how the forces on either side of its political statement are faring today.
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There IS an attack being waged on American democracy. And, We the People do seem to be on the losing side so far. Those in favor of a monarchy seem to be winning. Just in case no one has noticed.
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Thus, it may be unfair to demand that religion or natural law mandate “checks and balances” or the correct form of “representation.”
Jason, that's what you were getting at in a previous thread, I take it.
My reply would have been along this line: "consent of the governed" is the legitimizing principle. Certainly democracy, taxation WITH representation, is an easier way to legitimize that consent is given.
But a monarchy could also be consented to, sure. But without checks and balances, monarchies range widely between good and bad, and in the bad times, "consent" is problematic to determine. Why would anyone consent to a bad monarchy, even if it fell short of downright tyranny?
Now you'll find developing in both Scholastic and Calvinist Christian thought---which is to say pre-Enlightenment, pre-Whig thought---the idea that God rests sovereignty in the people, who then rest it in government. [Contra "divine right of kings," which argues God rests sovereignty in the gov't or monarch.]
It seems to me that each dynamic and concept you touch on here [the arguments are similar for God-given rights] is anticipated and already beginning to flower inside Christian political philosophy before the Enlightenment kicks in, although as you note, the mechanisms, the "science of government," to which Madison approvingly cites the rather atheistic Hume, may properly be credited to the Enlightenment/Whig types.
Although our more Christianist friends credit republics to the Old Testament, and Thomas Paine in "Common Sense" rather uses that argument, I meself am not quite ready to claim republicanism for the Bible. Still...
I did a lengthy examination of "Common Sense" awhile back that may be of interest.
http://americancreation.blogspot.com/2010/04/thomas-paines-common-sense-as-heard-by.html
Enlightenment advocates could or would say that it's "Whiggization" of the Bible, by there's enough there in the scriptures for Paine to work with that I wouldn't say his argument is created totally out of Whig cloth.
The "use" of the religious is not "new under the sun"! Ceasars did it in the past and that is the point for some, I suppose!
In the name of science, we have gotten ourselves in this mess with the subtly cunning. We have wanted to predict and understand human behavior, so we can protect America from attack. But when the attack is within the "inward parts" of our political structure, are we surprised by abuses of the system (abuse of power)? We have asked for "social control" and for that "change". Those that will use our system to form themselves a nice convienient place to "set up shop" are disempowering all of us before our very eyes!
I can't help but believe that Islam wants retribution for our sins, the sins of the West. And we will pay, it will be "an eye for an eye", unless we are as astute as they are in the use of our checks and balances! (These unfortunately are being ignored).
Consent of the governed is of primary importance if we want to protect our free society. Christians and non-Christians agree upon that! And with the priviledged status of certain races being exasperated by granting priviledge to certain religons, well, we will see the 60's come back to life, if we are not careful! We see social disorder in Pennsylvania and England.
These vandals and group behavior is the product of a belief in entitlements, and an angered racial identity. Individual identity is the only way to protect from group/tribal tendencies! And America had always stood for the individual. If this was more emphasized, then maybe there would be more tolerance, as it would be more personal, without tapping into the "power" of "the group"!
Yes, Tom, while values certainly come into play with regarding the “ends” of actions they also come into play regarding the means. There’s a proper way of going about “securing liberty” or anything else for that matter. But much of the instrumental aspects of the means to and end are technical details involved in weighing the risks and benefits of various alternatives. While “prudence” is a classical virtue, it is the result of a calculation--not a moral imperative. Stuff like “checks and balances” or the “mixed constitution” are part of the prudential science of politics while rights are unalienable.
The closest example in the Founding period is “representation” that you and Angie raise. Originally the British system had a “mixed constitution” of the three estates. The members of the House of Commons represented the common people. This is true even if some didn’t vote. I remember reading that the whole city of Manchester didn’t have an elected official in the House of Commons. However, the members of the House were said to represent them--i.e. stand in for them. This “virtual representation” was unacceptable to the Colonials but only after the House acted in ways that were contrary to the perceived interests of the colonials. Let’s remember that during most the decade leading up to the revolution the colonials didn’t reject the “mixed constitution” with the King as its head. They didn’t reject the principles of British politics ... only the acts done without adequate “representation.”
This “representation” isn’t the same as “one man, one vote.” Even after the revolution the franchise was limited to those with property. Other family members, tenants, and tradesmen, were “virtually represented” even if they didn't use the term. The property owners were thought to be independent, i.e. unbeholden, free from the will of others, and consequently uncorrupted.
This is were I see a difference between the fundamental value of liberty and the instrumental value of representation. The Founders were aware that slavery violated the moral imperative of unalienable rights. They knew the compromise was morally wrong. I see no signs that the Founders saw the limitation of the franchise as a moral violation. It seems more of a prudential matter to insure sound government.
Americans today see the denial of voting rights as an affront to the dignity and personhood of the individual. It isn’t merely a prudential matter. Thus, I argue the the “unalienable rights” is the place to ask where do these values come from and how does religion and secular philosophy sustain or underwrite these values. Staloff points to details of government procedure as refuting the influence of religion when these details tended to be more of a prudential nature to our founders than an unalienable right.
This isn’t completely true because the Founders were complex, of different minds, and evolving during the struggle. However, there is a difference of emphasis that seems to hold over the period. See if this makes sense to you.
Jason,
I think you've hit a nail that needed hammering upon! "Inalienable right" (Human Rights) can't undermine our Constitutional government OR the citizen's right of life and liberty. Otherwise, the whole world has that same right and the Constitution means nothing, really. None of our government officials, then, have any duty or obligation to the citizen. This is what I have been resisting! It's hard enough for our nation-state to maintain its stability during this volatile time!
Yes, the fundamental value of liberty and the instrumental value of representation! Equal citizens before the law!
The social contract view is in opposition to an organistic view, which would be the scientific view of biological evolution! Enmeshment happens and group behavior becomes "hard to see", when the goal and roles are so focused upon! This is how evil happens in ethnic cleansing, and shunning which are prone to be tribal and/or religious ways of conforming individuals. The outsider should NEVER the citizen be in a free society!!!
(Identity is part and parcel of self-perception, which is the attitudes about oneself. Community might further affirm or dis-confirm the person. But, the person can also affirm or dis-confirm themselves from such a group, because of their personal value system or as a survival technique.)
Another aspect of disagreement in the scientific world is alturism! I disagree that this is to be "formed"! Why? This is the way of religious intolerance!!! Habit formaton toward a particular goal/end/function.
The individual has inalienable rights to life and liberty, period. No matter what the noble or worthy goal is! Wouldn't it be more appropriate to appeal to an individual about a certain goal that is desired? or put an ad in the paper or magazine for the need to be filled....
"Self-interest" is a fact of life. Therefore, appealing and motivating from an incentive and negotiation of contract is respecting individual liberties and rights.
"Diplomacy" knows these rules and respects them, unless one believes that terrorism is an appropriate means to achieve one's goals/ends.
Jason,
Great points. There is debate as to how the US Constitution and DOI are to interact with one another. Whether the DOI is "Law" in any meaningful sense, etc.
One irony I have found is that the "godly" DOI is a more "liberal" document. The Godless Constitution, a more "conservative" one.
The liberal theism of the American Founding is a liberal, ecumenical, rationalistic form of Christianity. If Jesus has a place in that politics it's in a Lockean sense where Jesus is Messiah, not necessarily 2nd Person in the Trinity.
Interesting thoughts. I wonder if we find more Locke in the state constitutions of the times. Perhaps the federal constitution is less Whig and more ... Hamiltonian! He wasn't the same undergrad that wrote "The Farmer Refuted." If I remember Staloff's book ("Hamilton, Adams, Jefferson") he found Hamilton the most modern and Enlightenment-influenced. He sees Hume's influence, that atheist Tory! Together with Washington they gave the Constitution life by their example during Washington's Presidency.
I still don't know enough ... just some thoughts and questions as I read.
The DOI isn't law, but represents American values about equality. We are a humane culture. Thus, we seek international connection to maintain diplomatic relations, as well as commerce opportunities. This has little to do, in the real world, with symbolization which is found in religions. But, you have pointed out that Jesus as viewed as the Messiah was one of the symbolizations of Christian religion.
Jesus, as Messiah, came to those that were not part of "Israel". This was a re-symbolizaton of Israel's "Hope" of political prominance. And it is Augustinian and super-naturalistic in it's theological tenet.
Jesus, as moral model, is the physical representation of "morality on earth", as all are included in "God's Kingdom"...
Jesus, as "the Logos", which speaks Jewish wisdom to those "without the camp" of the Jewish religion.
Jesus, as the "Incarnation" or embodiment of "God's Presence" to the earth.
These and many more make up how Christians have understood "the message" of Israel.
And, yes, Jonathan, I have to agree with you that primarily, the Founders were Deistic in setting up our government. That was what or how the Founders understood "the rule of law" and not the "rule of men" (gods), as we believed in equality before the law. America was not based on the power structures of the Romans and Caesars, or European Kings but on "liberty and justice for all", which was the "promise" of the DOI in "inalienable rights". America believed in the right of anyone for equal opportunity, but some have come to view that "promise" as a "right for" entitlements. This is unfortunate.
So, those that want to be involved in humanistically inclined or diplomatic endeavors choose those vocations, while others might choose defining our laws, legislating our laws, representing the people before the courts, or serving in any other various ways where society might have need.
In this sense, Christian isn't any separate or sacred space, place, vocation or knowledge....We are a country that values liberty above other values when it comes to conscience. Equality is another value of America, and this is defined differently by the conservative/liberal....as well as the DOI and the Constitution.
Many countries have constitutional governments, but not all of them have succeeded, as they did not value liberty as of ultimate importance, when it came to conscience.....and religion.
The Diplomatic Corps, I believe, was represented by Ben Franklin, then Jefferson and Adams....it is my understanding that the Kings in Europe didn't appreciate American equality....But, the ambassador from Tripoli was asked why pirates kept kidnapping and asking for ransom monies. The ambassador replied that "it was written in the Koran that those that did not recognize them/Allah, were to have war declared"....this view is not liberty of conscience, nor is it based on the equality of humans, but a warrior, tribal, and barbarian mentality, which the ancients have always held....
But, I might add, in reference to Pinky's post, that I do NOT believe that international law should usurp our Constitution!!! In that sense I am not an internationalist. I believe that the nation-state, as large as it is, is large enough to give us enough "problems" to take care of....we don't need to complicate those issues with cultural diversity! The checks and balances in our government just do not work when there are those that don't hole to a liberal form of government....such as the West!
such as in the West...
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The entire issue of so-called originalism is involved in our present plight. If it isn't the Civil War being fought it's the continuation of the American Revolution. And, this bullroar about America's Founding as a Christian Nation is just a rehashing of both of those wars.
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Our Consitution isn't so much in danger of being usurped as it is of just being ignored.
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Our government is under attack from more than one side. And, the real danger is from within.
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Think the DOI and the reason our ancestors fought the Civil War.
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I read this comment on the CATO site about the Constitution, and DOI and majorities....opinion...I thought that separations of Church and State meant that they were to remain separate, in that the government could not use religion to further their purposes...Facism comes to mind under Hitler and Catholicism!
Here is the comment;
Sudeau Nymm said;
"The Constitution of the United States is sometimes pronounced, by scholars or politicians, to be neutral with respect to political principles. But the Constitution was not framed in a vacuum. It was devised as the Constitution of the nation founded by the Declaration of Independence. The Declaration prescribes the ends and limits of government, and proclaims the illegitimacy of any government that fails to serve those ends or observe those limits. The Constitution is thus ruled by the Declaration. The Constitution provides for the government of the regime created by the Declaration: the regime of equality and liberty." - Dennis J. Mahoney
What do others think?
Just released this morning meetings of the Obama adminstration and CIA operatives have been duped by someone posing connections with Al Quda...
Islam believes in an absolute rule of Allah, therefore, discussion, negotiation and compromise is only done by the "Infidels"!!! History has born this out. And to think that things are changed, or will change is playing into the hands of the enemy...separation of Church and STate isn't in the vocabulary! And now, we see similar in our culture wars!!!
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I dunno, Angie. I suppose the views you are expressing make a lot of sense to almost everyone; because we are, all of us, down here at the grass roots.
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Even so, there are a few, way up high in towers, looking down at you and me and everyone else laughing at our ignorance as we fuss back and forth against each other?
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Now they respect our Constitution holding their cards so close to their chest. But, when the time comes, they will lay their cards on the table and we will know who they are. Then, they will let you know what they think of our Constitution.
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In the meantime you can hear the Tea Party members singing their song, "I wish I were in the land of cotton..."
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Well, we know that this administraton has made diverse attempts to engage the evangelical, Islamic, Catholic, communist, and scientific communities.
Science education and evoluton are the foundatons of understanding the world according to this adminstraton. Therefore, the weakest and smallest must be defended, against the most powerful. So as to race, the minority (except the Jew), as to religion, Christianity via tradition and reason (historical roots/Catholicism), and experience (evangelicalism) toward the end of intertexuality of the Koran and Biblical texts...to bring equalty to the racial and religious minority of Islam...this is, I believe the "project"...
Survival of the fittest is to be undermined, which is the basis of free markets, competition, and the power of the nation-state itself! Alturism is to be embraced because this is Aristotle's view of character and the Marxst view of justice (which priviledges the poor)...and Aristotle was pivotal for Catholicism and Islam...
Problem is, our Constituton didn't priviledge any group, even when they were supposedly the disempowered, did it?
Aristotle I suppose influenced Aquinas, as to virtue based ethics...and therefore, that too, undermines the naton-state and everything that our nation supports....because of the separation of Church and State....virtue isn't to be mandated by the State. We see this in our entitlements, and the recent healthcare legislation...
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Survival of the fittest ... is the basis of free markets, competition, and the power of the nation-state itself ...
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That exact same statement can be made regarding monarchy. Give it some thought, reader. Monarchy and Capitalism are much more closely related than Capitalism is to Democracy.
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Looks like Angie is deep into Ayn Rand.
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Yes, Pinky, and this is the philosophical dilemma or liberty or equality!!!
Some believe that liberty is the primary value, while others believe that equality is of primary value. Since our naton was to be one where individual were self-governing, that is limited government. Government intervention only when people had conflicts of interests, then equality if something that is sought with opportunity, not entitlements!
"Self-interest" is a proper admisson of our nature as to the values of life and liberty. Therefore, virtue or alturism isn't to be the "ideal", because self-sacrifice is done under some "ruling authority". And that is what Islam, in fact does.
Therefore, personal interests are part of the person. The problem lies with religion itself, as it doesn't allow for self or personal interests, for the "sake of God", or "His Kingdom", etc.
Angie writes about the purpose of American government under the U.S. Constitution: . Government intervention only when people had conflicts of interests, then equality if something that is sought with opportunity, not entitlements!
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So--according to your position--we've never needed governmental intervention more than we need it now when there is so much conflict of interest from all sides.
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Has that hit your nail hard enough on its on the head squarely, Angie?
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Angie,
While some, like the Cato folks, draw meaning from the reference to "Nature's God" and "Creator" in the Declaration of Independence and try to connect that meaning to the Constitution, the effort is problematic to say the least. Apart from the fact that these references could mean any number of things (some at odds with the Christian idea of God), there simply is no "legal" connection or effect between the two documents. Important as the Declaration is in our history, it did not operate to bring about independence, nor did it found a government, as the Cato comment inexplicably asserts. The colonists issued the Declaration not to effect their independence, but rather to explain and justify the move to independence that was already well underway. Nothing in the Constitution depends on anything said in the Declaration. Nor does anything said in the Declaration purport to limit or define the government later formed by the free people of the former colonies; nor could it even if it purported to do so. Once independent, the people of the former colonies could choose whatever form of government they deemed appropriate. They were not somehow limited by anything said in the Declaration. Sure, they could take it as inspiration and guidance if, and to the extent, they chose--or they could not. They could have formed a theocracy if they wished--or, as they ultimately chose, a secular government founded on the power of the people (not a deity).
Perhaps the absence of any legal connection between the Declaration and the Constitution can best be shown by observing that in our history the Declaration has never had the force of law as has our Constitution. While courts have occasionally noted the Declaration as an historical fact, they have never supposed it to have the force of law as does the Constitution.
Mr. Indeap, I'm aware that strictly speaking per judicial precedent, the D of I has no legal binding force.
However, nothing comes out of nowhere---everything requires context. The D of I provides the American understanding of "rights"---prior to man's governments, God-given, inherent.
Hence
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
To use the term "rights" there implies an existing common understanding. I submit, from the D of I.
By contrast, as James Wilson argued contra Blackstone and Burke, the British notion of "social contract" is not the American vision, to wit:
Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone." ---Wilson, Of the Natural Rights of Individuals
As we see, Wilson is arguing against rights as founded in positive law; he is arguing them as "natural" rights.
Now, we may be past such considerations in our jurisprudence, that all we have now is a stare decisis and our body of positive law. Strangely enough, this may put me on the side of either "natural law" or "living constitutionalism" rather than originalism or textualism. But I'll take my chances.
BTW, along with the Articles of Confederation and the Northwest Ordinance, a very early act of Congress made the D of I part of the canon of the "organic laws" of the United states, US Code 1, iirc. I'm not aware of the argument ever being used in a court, or if it could be made with any specific precision and relevance to a case, but our "organic" understanding of rights and governments does indeed flow from those early documents.
Much like English common law was used in the early days of US jurisprudence, not so much as binding law, but as the overarching understanding of terms and dynamics about the law where the texts were imprecise.
For America's understanding of law didn't drop in from Mars in 1787. We had a rough idea and common understanding of its parameters.
Thank you, Doug. I had thought that the DOI had no legal standing, as I stated in a previous comment. But, the comment on the CATO article did confuse me.
Thanks, too, Tom. I need to take a further look into Originalism/Textualsim and "living Constituton". And I hope to listen to Alan D. and Clarence T. video tomorrow. That may shed some light on the subject.
Thanks all for the education.
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Of course, originalism can be understood in different ways. For example, it can be seen as a "rolling back of the clock" to the past in any number of venues. It's not just applicable to the Constitution.
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Tom,
You are right to observe that in interpreting the Constitution, the court may rightly take note of the context in which the words of the Constitution were drafted. The Declaration of Independence is one important part of that context, and in the few instances the need or occasion has arisen, the courts have considered the Declaration in just that manner. That, of course, is a far cry from treating the Declaration itself as law.
Congress did indeed reprint the Declaration in the first volume of the U.S. Code under the label “organic laws.” No court has ever suggested this reprinting rendered the Declaration a “law.” As the Constitution specifically prescribes how Congress and the Executive can make laws, it is difficult to imagine how or why one would suppose that a mere reprinting of a document between the covers of a law book would render that document a law.
That said, at least one commentator, Judge Napolitano, has supposed—nay, asserted—just that. He stated: "The Declaration of Independence is the law of the United States of America. Not only did it give birth to the country, but it was adopted by the Congress. If you go in the United States Code, you will find it there." From this, he reasoned: "When the government ceases to recognize natural rights, 'It is the duty of the people to alter and abolish it.'" With his penchant for hard-hitting rhetoric, he concluded: "It is the law of the land, that when the government ceases to recognize guaranteed natural rights, it is the duty of the people to alter or abolish it." http://www.dailypaul.com/159424/judge-andrew-napolitano-revolution-is-duty-of-the-people#comment-1685339 (Apart from the utter inanity of his reasoning and conclusion, note too that he misquoted the Declaration; the pertinent clause refers to the “Right” not the “duty” of the people to alter or abolish a government.)
Napolitano’s odd commentary serves the salutary purpose at least of illustrating the wild ideas that might come of any effort to treat the Declaration as law.
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We have to remind ourselves that Judge Napolitano is sponsored by Rupert Murdoch, i.e., News Corp.
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Doug, I accept your distinction as to the force of law; however, non-legally, Napolitano's remains a solid piece of American political philosophy.
And I'll tellya what---we take our citizens' swallowing the actions of our gov't a little too much for granted. If not revolt, there may come a time when civil disobedience [or scofflaw-ing] becomes more the rule than the exception.
As to “duty” vs. “right” they are both in the Declaration. Let’s review.
1. All men are endowed with certain unalienable rights. To secure these rights men consent to be governed. When government becomes destructive of these rights it is “the right of the people to alter or to abolish it”.
2. Prudence dictates this should not be for “ light and transient causes.” “But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government ...”
Thus, the degree of oppression creates the duty to exercise the right to revolution. Napolitano is right even if his quote is wrong.
Jason,
Then would "oppression" be up to the courts to decide? as to what would be prudent, or one's duty to throw off such?
It sounds like any matter that one disagrees with is a matter of protest, granted as a right to speech. But, revolution is a serious action, as it creates disorder. So "crowd agitation" is not a right, but the individual could seek redress in the courts?
Had Napolitano offered a point of political philosophy rather than law and referred to the Declaration for support and inspiration, I would have little quarrel. But he didn't. He pointedly claimed to be stating what the "law" is--a ridiculous claim by someone sufficiently schooled in the law to know better.
Yes, the preamble to the Declaration is certainly political philosophy, specifically Lockean. Law? I don't see that, either.
For that matter, I don't see the preamble to the Constitution, including the "general welfare" statement, as law. Such an introduction is an general orientation and establishment of context and purpose. The laws are that which follows the preamble.
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It would help if we have a hard definition of the word, law, as it pertains to our legal system.
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Consider the following argument:
The Declaration, signed by the representatives of all 13 states, states that there are natural rights that predate positive law. The ninth amendment states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Since, in the Constitution, there is no explicit denial of natural rights and the acceptance of natural rights was unanimously recognized, these rights remain recognized under the Constitution.
This isn’t because the Declaration is law or that it stipulates rights but because rights pre-exist positive law. The Declaration is only proof that natural rights were consciously understood and accepted. Thus, these were the rights implied by the 9th amendment.
The Bill of Rights was to insure that the Federal government didn’t become a rights-violating institution. The states (see 10th amendment) were to protect rights and the people still retained rights (i.e. 9th amendment) not explicitly mentioned.
Arguments for or against, anyone?
That's my argument in a nutshell, Jason, only better put.
;-)
The Declaration, as "organic law," merely informs our understanding of what the Constitution means by "rights," and "the right to have rights." If we need to consult a dictionary as to what these terms mean, the Declaration is as definitive as we shall find.
Jason, while true preambles aren't considered law, "general welfare also appears in Article 1 Section 8
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States...
...so the problem is a bit tougher.
You may find this helpful
"Madison on the general Welfare"
http://www.cato.org/pubs/journal/cj16n1-11.html
There appears to be a scholarly difference on a gap between the public and private Madison. However, I simply like Madison's veto of an early public works bill, which references Article 1.8 and the Commerce Clause as well:
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust.
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The Declaration, signed by the representatives of all 13 states, states that there are natural rights that predate positive law (My bold)
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States? There were states when the DOI was signed?
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I think your argument regarding the DOI needs to be bolstered by a statement of what you mean when you're using the word, law, here.
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Thanks, Tom, I forgot about the Article 1 Section 8 reference which, of course, demands that we come to grip with the phrase “general welfare” and thanks also for the subsequent notes on Madison’s veto.
Of course, Phil, a more rigorous definition of law is desirable. I need to refresh my knowledge of these legal issues which is why my thoughts above are expressed more in question form.
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