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Post-Independence Day: The Fading of the Teaching Print E-mail
By Hadley Arkes   
Monday, 05 July 2010

We interrupt this subset of columns on pro-life legislation and the hearings over Elena Kagan to take account of some curious inversions that have come along with July Fourth: We find ourselves celebrating Independence Day while some of our leading commentators have managed to detach the understanding of Independence and America from the teaching that was proclaimed to the world on that July 4, 1776.  

And so, in a moving speech on Memorial Day, that remarkable man of the law, Michael Mukasey, noted quite rightly that America was not defined by “blood or soil.” But in bringing home his point, he declared that America “is the only country in the history of the world to define itself based on adherence to a legal document, the constitution.”  

This sense of the matter has been echoed widely, even as we have come to celebrate July Fourth. I’ve been a considerable fan of Judge Mukasey, but the former Attorney General should have known better. The clue came when Mukasey invoked Lincoln several times, and yet completely disregarded the prime lesson in Lincoln’s teaching. Lincoln famously said at Gettysburg that our “nation” had been brought forth “four score and seven years ago.” Counting back eighty-seven years from Gettysburg does not get us to the Constitution (1787-88). Lincoln found the beginning of the nation in 1776, with the Declaration of Independence. 

The country was based on that “proposition,” as he called it, “all men are created equal.”  From that proposition everything else radiated. The nation began with the articulation of that first principle that marked the character of the American regime. The task of forming a constitution was to arrange a practical structure of governance that would be consistent with that first principle. What Mukasey referred to as “the constitution” is our second constitution, the one we adopted after the first one proved defective.  

The Constitution said in the preamble that it was made for the purpose of bringing about “a more perfect Union.” As Lincoln reminded us, then, the Union was older than the Constitution. Lincoln once drew on Proverbs 25: that a word fitly spoken is like an apple of gold in a frame of silver. The word fitly spoken was the proposition “all men are created equal,” and that was the “apple of gold.” That was that proposition that also entailed the conclusion, drawn in the Declaration, that the only rightful governments over human beings were those “deriving their just powers from the consent of the governed.”  

That was the principle that called into radical challenge the justice of human slavery. The American Founders had to make a prudential accommodation with the evil of slavery for the sake of preserving the Union,  but they would withhold, from the Constitution, any moral endorsement of slavery. Their hope, as Lincoln said, was to put slavery “in the course of ultimate extinction.” If Americans were lured beyond that accommodation – if they were lured into a moral indifference to the preservation and extension of slavery – they would gently talk themselves out of the ground of their own freedom. As he drew out the understanding of the apple of gold, Lincoln wrote that:

the Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple – not the apple for the picture.
Translation: The Constitution was made for that first principle that defined the character of this new American regime. This new American polity was not made for the Constitution.   Lawyers can invoke different clauses of the Constitution, whether the Commerce Clause, Equal Protection, Privileges and Immunities. But the meaning of these clauses will depend on who those persons are who are the bearers of “rights,” and that understanding is not to be found in the Constitution. 

Everything will come back, as John Paul II said, to the meaning of “the human person” that the law is seeking to protect and restrain. And so we find lawyers professing to be anguished about the Constitution, and worried that the right to abortion may be threatened. They know formulas and clauses in the Constitution, but not the deeper principles that supply the meaning to the Constitution.

It is worth reminding even the former Attorney General that the Constitution drew on principles of lawfulness that were there before the Constitution. They were the principles that barred “ex post facto laws” and “bills of attainder,” and enjoined us to “presume in favor of the innocence of the accused.” They were the principles that the framers drew upon as they set upon the task of composing the Constitution. And their validity as principles commanding our respect would have been the same even if they were never mentioned in the text of the Constitution – as indeed, “presumed innocent” has never been.

The deeper irony of our own time is that we have seen some of the most anguished concern for the Constitution on the part of lawyers and professors who have worried that the right to abortion could be threatened, or that the government is detaining, without trials, enemy combatants committed to the killing of Americans. The strange part is that some of these lawyers have been quite emphatic in their insistence that there are no moral truths. But if there are no moral truths, why would those rights of the Constitution have a claim to our respect as things “just” and “good”? One begins to suspect that some of these lawyers have latched onto the Constitution to take the place of the moral truths they no longer credit. But they have made the Constitution in that way an idol. An idol to be revered, magnificently detached now from any claims to truth or reason.

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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Comments (11)Add Comment
Difference Between Nation and State
written by Gunnar Gundersen, July 05, 2010
Great article Professor Arkes. It seems that many have forgetten basic civics. Just becuase our current government began with the institution of the Constitution our Nation began on July 4, 1776 with the Declaration of Independence. The Declaration is the foundational law of our Nation, one which the current State/government created by our Constitution must recognize.
The Heart of The Matter
written by Martial Artist, July 06, 2010
Thank you, professor Arkes, for a most succinct and cogent statement. You have given expression to something which I had always thought was the relationship between the two documents, but had never been able to clearly articulate.

Pax et bonum,
Keith Töpfer
Life long learning depends on life long teaching
written by Ray Hunkins, July 06, 2010
Thank you Prof Arkes for using this means to teach an important principle. The rational expressed never occured to me - even after 40 years of an active law practice. Life long learning depends on good teaching, focused on truth and logic. Your article offers both.
Constitutional contretemps
written by Joe, July 06, 2010
So what is the "Law of the Land?" If we must look to the Constitution, we are on shaky ground for a number of reasons. Firstly, the document was the result of compromise between
Jeffersonian Democrats and Hamiltonian Federalists who could not agree on states' rights vs. national authority. Hence, the dreaded word "compromise" prevailed at the Founding, as the Framers were sharply divided over the issue of federalism.

Those seeds of division sprouted throughout U.S. history as evident in Supreme Court rulings (Dred Scott famously and others) that later were reversed in the light of different interpretations.

The problem with human law, however sacrosanct it is supposed to be, as Mr. Arkes implies, is that it is inherently flawed because of its elasticity to suit the political whims of the times.

The recent 5-4 squeaker on the 2nd Amendment testifies to the confusion over the right to bear arms in which the Court affirmed the individual right and not simply a "collective" right to own firearms. Had Elena Kagen been on the court when the ruling was issued, it likely would have gone 5-4 the other way, sparking yet another agonized reexamination of the meaning of the Second and perhaps a flood of new laws to ban guns. In other words, back to square one and an NRA on the rampage.

All of which is to say that only Divine Law is immutable. Although America must look to its Constitution as the final determinant, albeit subject to interpretation, of the legal bedrock on which she stands, it nonetheless, like Caesar's degrees, can never supersede the perfection of God's laws. For as St. Peter, stated, "We must obey God rather than men."
Tradition, Not Principle
written by James Danielson, July 06, 2010
The author seems to say that the Constitution was written to defend certain principles. His references to Lincoln bear this out. Garry Wills has correctly written that the people who gathered at Gettysburg to hear Lincoln speak had their intellectual pockets picked. In that deplorable speech, the Pick-pocket-in-Chief claimed that a new nation formed on this continent in 1776. This is nonsense (but apparently effective propaganda), as is the assertion that the Constitution of the United States was drafted in defense of moral principle. This is not to say that moral principle wasn't a concern to the fellows who gathered in Philadelphia to overstep their mandate, but the Constitution was ratified by sovereign states whose citizens did not believe they were surrendering their sovereignty to a central government charged with vindicating high principle. The central government had limited powers, as emphasized by the 10th amendment, which itself was a restatement of limits on the power of the central government made clear in article two of the Articles of Confederation. To hold that the Constitution embodies moral principles to which we are devoted sets the frame for the very errors the author here decries because it is irresistible, as the practice of our courts shows, to set aside the actual Constitution and simply "interpret" moral principle. This is not the central government's business. If government is to get up to this sort of thing, it is for each state to decide what it wants to do. The preamble to the Constitution is a statement of intent, lacking the force of law. To mine it for principles thought to be embodied in the document is politically reckless.
American Exceptionalism
written by Dennis Teti, July 06, 2010
Fine discussion of the connection between the moral principles of the Declaration and the Constitution meant to embody them in organic law. You are right that the link between Declaration and Constitution has become ever weaker over many years. If the Constitution is not rooted in the moral principles of equality and liberty, why should we be surprised when our President, no less, makes American exceptionalism a matter of relativism? He said that he believes every people think their nation is "exceptional." In other words, our President confuses the mere love of one's own with the love of moral truth...raising the question whether he believes there is any moral truth at all, whether in the Declaration or otherwise. Part of the project of bringing back limited government therefore is reconnecting the Declaration to the Constitution, as you have done in this article.
written by Joe, July 06, 2010
Excellent article, it was well and truly written. I have to laugh that many of the same earnest "men without chests" who claim to revere the constitution describe it as a living document. There it is! It is evolving in a morally neutral universe with no higher authority than chance. The unborn are merely the victims of chance and the terrorists given "rights" the beneficiaries for now. Evolution is change. Place your bets ladies and gentlemen. Place your bets.
Great column, and a question for Hadley Arkes
written by Joe Wood, July 06, 2010
Another great column by Prof. Arkes. But a question, if he might respond: American presidents and military officers take their oath to " and defend the Constitution..." Is this a good formulation for the nation to use, and if so, what exactly are those who take the oath swearing to do?
written by Graham Combs, July 06, 2010
I was surprised that Prof. Arkes did not refer to last week's interchange between Sen. Sessions and (soon-to-be) Justice Kagan. He asked her specifically about the Declaration of Independence and the inalienable rights it proclaimed. Ms. Kagan stumbled and "uh'd" and "ah'd" saying her job will be to comment on the law and constitution within specific fact patterns (just like law school hypotheticals!) -- situation ethics now institutionalizied completely. Apparently the Declaration as well as the Revolution are historical events "above her paid grade." Moral principles and individual rights have been sand-blasted from legal education. Power is the principle. Look at what they do not do; listen to what they do not say. Of course my law school experiences are mere anecdotes.
Prof. Arkes responds, Part I.
written by Hadley Arkes, July 06, 2010
First, I’d like to thank Gunnar Gundersen and Dennis Teti and other of our “regulars” for their comments. I’m especially touched by the note from Mr. Hunkins. He's candid enough to say something that I’ve heard judges say: that these kinds of commentaries come as news to them even though they’ve spent their lives in the law. Mr. Hunkins reaches, in this way, the purposes that account for the writings in this journal. I should pass over some of the grand nonsense offered to us in the name of “tradition” here, for it is immured in layers of mistakes and misunderstandings. It takes more time to refute fallacies than to utter them. And in this case it would take months to undo what has evidently taken a lifetime to absorb. I’d point out, though, in case it came as news to people, that Justice George Sutherland, along with Lincoln, found some legally significant points in the preamble to the Constitution. Daniel Webster was able to draw on the preamble for the sake of refuting the claim that the Union began with a “social compact” among States. It began, rather, as Webster pointed out, with “we the people” ordaining the existence of the government in their position as the source of authority.
Prof. Arkes responds, Part II
written by Hadley Arkes, July 06, 2010
As Lincoln and Sutherland pointed out, the States were never sovereign as States recognized in international relations. When debts were undertaken abroad during the revolution, they were incurred, not for Maryland and Massachusetts, but for the United States. And when Britain and France recognized the United States and sent ambassadors, they did not send ambassadors to Boston, New York, New Haven, Providence. They sent one ambassador to the capital of the sovereign entity they were recognizing. The focus on the States diverts from the question of what the ground of authority is in those separate States. If it is not, “all men are created equal,” we simply arrive at Calhoun’s understanding: that power rests in the hands of people who have seized control of power in those States. There are no moral tests; it is “Might makesright.” It is a measure of the erosion of understanding in our time that an adult American could write so breezily about law happily detached from any moral ground of its justification.

But Joe Wood raises an important question. Russell Hittinger remarked that if the decisions set down by the Supreme Court were the Law of the Land, if those decisions established “constitutional rights,” as though they were woven into the text itself, then Lincoln could not have raised his hand to take the oath of office on March 4th 1861. He could not earnestly have sworn to uphold the Constitution that contained the decision in the Dred Scott case. For he had just led a national movement to counter, to overturn that decision. He could not commit himself to upholding a “right” not to be dispossessed of one’s property in a slave when one moved into a territory of the United States.

But at the same time Lincoln understood himself obliged to respect the Fugitive Slave Clause of the Constitution, to return runaway slaves. As Lincoln said, that Clause was “nominated in the bond.” It was part of the original deal, and without it there would have been no Constitution committed to putting slavery in the course of extinction. The obligation to respect the positive law of the Constitution sprang directly from the principles of natural law. If there was a natural right of human beings to be governed with their consent, then there was an obligation to respect the laws--and the constitutions--that were made and sustained by the consent of the governed. Until, of course, they were changed in a legal way.

I’ve sought to argue, though, in books like Beyond the Constitution (1990) that it becomes persistently necessary to trace our judgments back to those principles antecedent to the Constitution in order to apply the Constitution sensibly to the cases that come before us. We might return to Lincoln again for the most dramatic example--Lincoln’s decision to suspend the Writ of Habeas Corpus during the Civil War. Lincoln was obliged to preserve and execute the laws, but as he asked, were the whole of the laws to go unexecuted, the government itself to fall to pieces, if the Congress were not in session, in town, to suspend the Writ? The Constitution itself supplied the principal moral premise: viz., that it might indeed be justified for this republic to suspend the Writ of Habeas corpus during an insurrection of invasion. Could it really be supposed that this decision could be morally justified in a time of danger--but not if Congress were not in town? As Richard Henry Dana argued during the Prize Cases, could it really be that the nation could not defend itself if a foreign enemy were indecorous enough to attack the country when Congress was not assembled and a declaration of war could not then be voted? It made far more sense to suppose that the authority to defend the country--and to suspend the Writ--would flow to the one branch of government that is never out of town, never out of session. And that was the Executive, the permanent administration of the laws. The Executive could act, as Lincoln said, until the Congress could be called together.

And so what do we have? An Executive, quite serious about respecting the limits to the reach of its authority, even the reach of its authority under the War Powers, and yet an Executive who understands that at times he must trace his reasons beyond the text to those purposes and principles that were there even before the Constitution. And if it were necessary at times “to go beyond the law for the sake of the law,” the purpose was to restore the regime as it was: the regime that was ratified and put into place by the people themselves, as they flexed their natural right to determine the terms on which they were governed.

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