Also see these two posts (one and two) by Ilya Somin on whether blacks were part of "We The People." It's often said that, if you looked at what America's Founders did, "rights" belonged to white propertied Protestant males. Not exactly (it's complicated). Viewed through the lens of "states' rights," the states did different things. Blacks, women, non-Protestants had "rights" in some states, not others.
Justice Thomas' point is interesting. The Constitution unmoored from the Declaration gives us a pro-slavery Founding. Read together, we get an anti-slavery Founding.
18 comments:
Excellent, Jon. I was just referring to this paper
http://anastaplo.wordpress.com/2011/04/09/in-re-antonin-scalia/
on another blog. Scalia is shown as a "legal positivist," or "legal realist," not a natural law guy. Scalia indeed "un-tethers" the Constitution from the Declaration!
[Anyone who thinks Scalia and Thomas are just peas in a pod is wrong!]
http://anastaplo.wordpress.com/2011/04/09/in-re-antonin-scalia/
Anastoplo: I noticed in my prepared remarks of April 7, 1997 that the legal realist cavalierly disavows the natural-right/natural-law tradition vital to the Anglo-American constitutional system. I then observed (Appendix, Paragraphs 6-7):
If someone challenges the “wisdom” of our day about the common law–that common law upon which the Constitution rests–it need not be because he is being presumptuous. Rather, it can merely reflect the reluctance of a true conservative to repudiate the sensible teachings and steady practice by centuries of thoughtful jurists in the Anglo-American legal tradition, a tradition grounded in turn on the natural-right/natural-law tradition that the modern legal realist cavalierly disavows, thereby helping Rome to burn.
This disavowal extends to ignoring the Declaration of Independence in constitutional interpretation, even though that document is identified in the first volume of the United States Statutes at Large as one of the four organic laws of the United States. Symptomatic of this neglect is the failure of the United States Supreme Court in Brown v. Board of Education (1954) to refer to the Declaration of Independence, even though the ruling in that case redeemed the “created equal” language of the Declaration as it came to be applied in the Fourteenth Amendment. It will hardly do to say, as Justice Scalia with many others says, that the Constitution is not really “aspirational” in its terms and tone.
Justice Scalia, very much the legal realist, does have quite a different view of this matter (Blackacre, April 22, 1997, p. 2):
I don’t think the Declaration of Independence is part of our law. It was drafted before the federal government even existed. The Declaration of Independence, unlike the Constitution, unlike the Bill of Rights, is an aspirational document! That’s where you hear such wonderful stuff [about] life, liberty, and the pursuit of happiness . . .
The Declaration of Independence is aspirational. That’s something you inspire people with, it’s not something you go to a law court with.
He then added something which startled several in his Loyola audience, as he went on to insist that he as a judge should have nothing to do with the Declaration of Independence (ibid., p. 2; emphasis added):
The Bill of Rights, on the other hand, has none of that philosophical poppycock in it. It’s quite precise. “Trial by jury in all civil matters involving more than $20″–that’s not the French Declaration of the Universal Rights of Man. It’s not aspirational, it’s law! The Declaration of Independence was not law, so I do not apply it in my opinions.
Maybe I will be able to contribute a worthwhile post later; but, for the moment I just want to say this.
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Gary Nash points out in his book, Class and Society in Early America, that historians often overlook the significance of class in their discoveries of our history.
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Yes, that's Marxist historical theory and Gary Nash is a Marxist historian.
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Tom.
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Come on.
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I don't mind your professorial attitude as I understand how some people can get wrapped up in that way of being.
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But, academics have no business in dissing people in such ways. Marx was not some dumb and ignorant person; but, he was a brilliant thinker. A lot of what was done in his name was not at all good; but, there are very important concepts that we might call the baby.
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And, open minded people do not throw the baby out with the dirty bath water.
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Your comment belongs to be given its place which existed about fifty years ago. We are now in the twenty-first century.
No, Phil, I mean he's a Marxist historian.
"The history of all hitherto existing society is the history of class struggles."
I do not mean to say he's a communist, or even a Marxist.
So, THAT is what you meant?
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O.K.
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But, I'll wager I'm not the only reader who would get it as an ad hominym and reason to discount what ever Nash has to say.
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Nash IS tough on historians who zero in on and stager on dates and events as though they had no connection with social strata.
I'm pretty sure we can agree that America a socially stratified society and that it was so during its creation and the times leading up to it.
As most adults realize, class does play into society in any number of ways. For example, we have a class system here. Me, being not well educated in upper degrees, means that I can be distinguished from those with M.A.s, and PhDs after their names. Or those like you, Tom, who have such great ability store information in the files of your minds.
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My hat is off to all of you or I wouldn't be here. So, why should I be shuffled off as a nincompoop?
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A lot of us don't like to admit to class stratification.
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I'm hoping we get back to the original topic, natural law vs. legal positivism, although it's probably too late. Other blogs do the Marxist thing. In fact, it's more the exception than the rule in the 21st century.
Peace.
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Justice Thomas refers to class in this video. In it, he says we couldn't have had this conversation 40 years ago.
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We're on topic, Tom. Bull's eye on topic.
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Then comment accordingly, by all means. I'm all ears for anything instructive and relevant. The floor is yours, Phil. Edumicate me.
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Don't hold your breath. I'm not ready for my comments here. I thought I made that clear.
I watched the video on C-SPAN today. Awesome.
[Class is about 1% of it. Ideals are 99% of it. The whole world has class struggle. America is nothing---we are nothing---without our ideals.]
Interesting debate here. I will have to watch the video. My thoughts on looking at the founding and Constitution without looking at the Declaration of Independence is clear and documented here. Have just finish reading "Passionate Sage" by Joseph Ellis and he states that John Adams believed that the case for Independence has be laid out and achieved long before the DOI from 1760 on... Many of these writings in that period were done by Adams and he was the chief advisors to states drafting new Constitutions.
His debates with Jefferson outline the difference between Conservative Republicanism and Classically Liberal Republicanism. Classic thought and modern thought. God centered natural law and the more secular version. The latter still very God centered compared with the French Revolution version.
Great stuff there, Joe. Thx. The video is fantastic. I was never an Akhil Amar fan and many lefties hate Clarence Thomas, but I think the discussion should be seen by every American.
It's inspiring. What hit me the most is that they both hate cynicism, they both love America for her ideals, not just for what she "could" be, but for what she has already accomplished to make her ideals a reality.
Our readers tend to simply shrug away such academic debates as Tom and Phil have displayed here. Justice Thomas, however, has made a gripping case with his understanding that "respect" ... "comes from the way I was raised." Akhil Amar's point about the growth of an "ever greater arc of democratic" ideas has definitely won our applause. Certainly, the idea that "We" are all "the people" who still struggle to write just law in the US has been validated here.
That "all men are created equal," and that our rights are "endowed by our creator" is very much the national debate, and not "academic" atall.
Indeed ,the most touchoing part of the video to me was when Justice Thomas said that [unlike the basis of the landmark anti-segregation Brown vs. Board desegregation case*], he never felt his self esteem lowered by being subjected to segregation.
Because the nuns had told him, not based on the Bible but based on the Gettysburg Address, that all men are created equal.
Law does not make men equal, God did---and that is the Natural Law.
"This is what is called the law of nature, "which, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this..."
---Alexander Hamilton, the Farmer Refuted
This is the Founding, this is America. At least for a little while longer...
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*"If you are not familiar with the [the work of Kenneth and Mamie Clark, two African American psychologists], they used dolls and illustrated that children hold racial biases about themselves.
In their studies, children would select dolls representing “preferential” attributes. Most Black and white children at that time chose white dolls as having the most preferential characteristics. Also, Black children who identified themselves as most like the Black dolls, said that the Black dolls were least preferential. Here is a copy of the study: http://i2.cdn.turner.com/cnn/2010/images/05/13/doll.study.1947.pdf.
These studies were used as evidence in the Brown v. Board of Education hearings that eventually led to desegregation of schools because Black children’s self-esteem’s were, as they concluded, suffering due to segregation.
http://makeitplainonline.wordpress.com/tag/doll-studies/
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I can't come off as though I'm some kind of an expert here. My views are more about me being in the middle of what's going on. I have to depend a lot on others whose views may be better.
But, Justice Thomas certainly accepts the fact that society is layered. It seems his personal philosophy is to ignore any barriers adn to charge toward his goals and objectives. Of course, one doesn't get to be a Justice on the Supreme Court by chance--it takes a strong character to achieve such a place. That seems to be part of his point. Thankfully, he had some highly dedicated nunns who pushed him ahead by taking away any excuses for failure. I liked that about any teachers I ever had.
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But, the video shows us that America has been a class society and more so from time to time.
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For some reason there seems to be pressure against accepting this plain and simple fact of reality.
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Of course as a psychologist Mom is familiar with the doll studies. She posted from her cell phone, "Thank God" that there is resistance to accepting a class society.... I don't see her post here yet. I am merely my mother's daughter -- no expert either, but I agree with her.
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