Obama and the Control of Omissions Print
By Hadley Arkes   
Monday, 27 September 2010

Our late Chief Justice, William Rehnquist, was rightly dubious about the woolly claims made for a “living Constitution.” They were claims made by judges and writers, soaring in high sentiments, but quite untethered to anything in the text of the Constitution or the logic of a regime of law. These were people who appealed, in effect, to a higher law, while usually insisting at the same time that there were no moral truths. 

Rehnquist could not be faulted for recoiling from a notion of “natural law” that seemed to involve mainly airy sentiments, with no clear grounds for testing their truth or falsity. But regrettably, Rehnquist and many other conservative lawyers came to accept that vulgar understanding of natural law. For them it was an invitation for a judge to convert his own “subjective” feelings into the law of the land. What apparently did not come within their sight was a discipline of moral judgment, guided and constrained by the canons of reason.

And so Rehnquist, speaking at a law school in 1973, took the occasion to exorcise the demon of natural law. He declared that the protections of human liberty contained in the Constitution did not have any moral standing on their own, with a claim to our respect. These safeguards, he said, do indeed “take on a generalized moral rightness or goodness,” and yet that was not “because of any intrinsic worth nor because of . . . someone's idea of natural justice but instead simply because they have been incorporated in a constitution by a people.”

To those lines Professor Harry Jaffa replied in a scathing commentary: 

To say that safeguards for individual liberty do not have any intrinsic worth is to say that individual liberty does not have any intrinsic worth. To say that individual liberty does not have any intrinsic worth is to say that the individual human person does not have any intrinsic worth. This is to deny that we are endowed with rights by our Creator. To deny that is in effect to deny that there is a Creator. This is atheism and nihilism no less than moral relativism. 

It was a kind of soft nihilism, backed into at times by lawyers and judges on the conservative side. And backed into by men of the most decent and generous reflexes, men such as Bill Rehnquist. These old lines came back to mind this week when a dispatch came from Bill Donohue of the Catholic League, bearing late news: On September 15, President Obama addressed the Congressional Hispanic Caucus, and in his remarks, he invoked the Declaration of Independence. Donohue was drawn, as we were, to the notable omission from lines that used to be familiar. In Obama’s rendering, they ran in this way: “We hold these truths to be self-evident, that all men are created equal, endowed with certain inalienable rights: life and liberty and the pursuit of happiness.” 

What was left out of course was the “Creator” who endowed us with rights. George W. Bush, not usually credited by the media with high powers of mind, gave a truer version of the Founding principle when he famously observed that “we” did not give these rights to each other. If we gave these rights to each other – if we ourselves were the source of those rights or the authority that conferred – we could just as readily withdraw them. But those rights were thought to spring from the very nature of human beings: that no man was by nature the ruler of other men in the way that God was by nature the ruler of men, and men were by nature the rulers or horses and cows. These rights were thought then to spring from the “laws of Nature and of Nature’s God.”

From that perspective, there was nothing incomprehensible in saying that even that homeless man, who may have broken his own life, has an intrinsic dignity. For as diminished as he may be, we used to say that he was “made in the image” of something higher. But now a large portion of our political class shies away from acknowledging that Creator, the Author of Nature’s Laws. And Mr. Obama offers the most faithful reflection of that class and its state of mind. 

His speech went through layers of writing and review before it was delivered, and his omission could hardly have been inadvertent. But then the question: If some of our people no longer take seriously that Creator who endowed us with rights, what does the heavy lifting here that used to be done by that God of Israel? Does that homeless man bear, in himself, an “intrinsic dignity,” or do the rest of us simply confer upon him our notion of dignity and rights? But if the dignity is “intrinsic,” we are evidently not it source. And if it resides within him, when does he get it?  

James Wilson, one of the most thoughtful of the Founders, raised the question: If we have natural rights, when do they begin? And his answer was: as soon as we begin to be. Which is why, as he said, that the Common Law casts its protection over human life “when the infant is first able to stir in the womb.” That line, too, is likely to be omitted from any speech by President Obama.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths:  The Touchstone of the Natural Law

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