I'm touched that George Will's July 4 column favorably cites my book, The Conscience of the Constitution in support of the argument that, to understand the Constitution, one must also grasp the philosophical foundation for the Constitution set forth in the Declaration of Indepenence.
This really shouldn't be a startling thesis at all, but many conservatives are hostile to it because they would prefer to see a more collectivist, "states rights" interpretation of the Constitution prevail, instead. Relying on historians of the "classical republicanism" school, who have tried to downplay the significance of classical liberalism in the American Revolution, these theorists contend that the war was really fought over the so-called "right" of "self-government," and that the natural rights the Declaration speaks of either don't exist at all or really referred only to the powers of the colonies to establish rules that controlled the decisions of their residents. As Harry Jaffa explained far beyond my poor power to add or detract, this is in fact precisely the opposite of the original intentions of the authors of the Constitution. It is, rather, the argument John Calhoun fashioned in the 1830s, in an effort to deny the truths of the Declaration and to transform the Constitution into the reverse of what it was actually designed to be: a bulwark for individual rights properly understood.
Among those who don't properly understand them are Andrew Hyman, who argues this "classical republicanism" thesis on The Originalism Blog. He begins (as is common, I'm afraid, of writers of this stripe) with a straw man, claiming that Will and I believe in "federal judicial supremacy," a position neither of us has ever endorsed. It is true, of course, that it is one job of the judiciary to identify and protect individual rights. The founders well understood this, and said so many, many times. But at no point have I or Will ever said that federal courts are "supreme" in any sense. Rather, this claim is based on the fallacious idea that the federal judiciary is undemocratic, when (as I explain in my book) they are certainly not.
Another straw-man argument Hyman employs (again typical of the classical republican view) is to imply that there is a necessary collision between "representative democracy" and individual liberty. In fact, such a contradiction exists only in the minds of those who fail to appreciate the classical liberal view articulated in the Declaration. The Declaration does not, however, deny the validity of representative democracy, but on the contrary, explains and justifies it. It states that we begin as free individuals, and then agree to come together to create a government, which we then vest with the power to protect our antecedent individual rights. That government is valid only insofar as it respects those rights, but if it becomes destructive to those ends, it can be altered or abolished. In other words, rights come first; government second--and it is those rights that give legitimacy to "representative democracy." Hyman gets this backwards when he suggests that these two principles are somehow in conflict or that "representative democracy" creates our rights or is responsible for our enjoyment of them. That is a proposition the founders not only did not endorse, but that they expressly rejected.
Among the string of fallacious arguments Hyman offers against the founders' views is that "both the Fifth and Fourteenth Amendments provide mechanisms for taking liberty away, no matter how broad it is, subject to the exceptions elsewhere in the Constitution." This is, of course, not an argument at all, because it begs the question of what "liberty" really means. Liberty means (in Jefferson's words) "unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual." Since one has no rightful liberty to harm another, the govenrment is not violating our rights when it bars us from harming one another. Hyman, however, fails to respect the difference between liberty rightly understood (freedom to act while respecting the rights of others) and totally unlimited action irrespective of the rights of others. This is, again, an error no founding father would have made, as they knew Locke's statement that "freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man's humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own."
Hyman's argument, such as it is, is based on disregarding this fundamental distinction, and viewing liberty as merely the ability to act, full stop. His next step is to claim that the way we distinguish what actions are permitted and which are not is to turn to the voters and ask them to tell us what freedoms we can and cannot have, because otherwise we'd have anarchy. Whatever one might say about that argument, it is not one the founders endorsed; rather, it is one they rejected in both the Declaration and its Constitution. "An elective despotism was not the government we fought for," said Jefferson, "but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced,,,as that no one could transcend their legal limits, without being effectually checked and restrained by the others." By essentially arguing for a passive judiciary, Hyman is seeking to tear down that system of checks and balances, and along with it the "free principles" which in Hyman's view aren't really principles at all, if the majority doesn't approve of them.
Hyman concludes that "The Declaration of Independence was not meant to defend only individual liberty, but also collective and political liberty. It speaks of 'a free people' organized into 'free and independent states.' Those aspirations are reflected in the democratic architecture of the Constitution, which could all be irretrievably destroyed by rashly transferring power over every fundamental political question to a largely unaccountable federal judiciary which was never meant to play such a role." This is, as I've said, wholly a straw man argument, since neither Will nor I have ever suggested transferring power (rashly or otherwise) over "every fundamental political question" to federal courts. It is also false, in that the federal judiciary is not unaccountable, or that the courts were "never meant" to play the role of deciding essential questions about defining individual rights; in fact that is amont the most important jobs the founders entrusted them with, and is and has always been, among the basic tasks of the judiciary in the Anglo-American common law tradition.
But more important than all these fallacies is the idea that the "collective liberty" Hyman refers to is somehow in collision with the principles of individual liberty it details. The opposite is true: the Declaration gives us a hierarchically structured argument familiar to anyone who's read Locke, Sidney, Jefferson, Madison, Adams, etc.: the "collective liberty" enjoyed by states is given to them by free individuals who have more fundamental individual rights, and those states are deputies of the people, not their masters.
"Was, then, the American Revolution effected," wrote Madison when he was confronted by arguments virtually identical to those Hyman advances,
was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States...might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty...? [This is] the impious doctrine...that the people were made for kings, not kings for the people.... [T]he public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.... [A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.
That Hyman ignores this basic element of originalism is still not as bad as the moral relativism inherent in his unspoken premise that "fundamental political questions" are to be decided by the "collective" he refers to. That is the very opposite of what the founders intended. The most basic premise of the entire American experiment is that truly fundamental matters are not subject to the dictate of either a single king or a majority, but are rather dictated by "the laws of nature and of nature's god." That is to say, our rights are inherent in us because of our humanity, and are to be discovered by and respected by the executive, legislative, and judicial branches--not decided by them. That is the principle to which the founders pledged their lives, their fortunes, and their sacred honor, and for which "the precious blood of thousands was spilt." Fortunately for us, it appears today, that we have only straw men left to fight.
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