Subtle, Stylish Treasons

Abraham Lincoln foresaw, with his usual acuity, that if anyone sought to lure the American people away from a republican government, a government by the consent of the governed, he could not do it by challenging directly the rightness of popular government. He would have to do it in a far subtler and more stylish way, with a facade of moderation. And yet there would be a telling sign: One way or another he would have to discredit that “proposition” with which the American republic began: “all men are created equal.” But for a people rightly formed, that move would set off the alarms of warning. As Lincoln said, that self-evident truth of the Declaration of Independence, on the equality of human beings, would stand then as “at least one hard nut to crack.”

Lincoln would not be astonished then, or taken in, by the subtle forms that have been contrived in our own day, on the Left as well as the Right, as people talk themselves out of that anchoring premise of our regime, and the first principles of our own freedom. For the Left it takes the form of denying that there are moral truths, grounded in nature, truths that would hold their truth even across “cultures.” The Left would radically deny in this respect what Lincoln had said in praise of Jefferson: that in capturing, in a memorable phrase, the rightness of ruling human beings only with their consent, he had articulated “an abstract truth, applicable to all men and all times.” On the political Right, we find a suspicion of “first principles” and the claim that reason can discern moral truths. Conservative jurists recoil from the claims of natural law because they have come to disbelieve deeply that there is any discipline of reason to restrain the judges who are all too ready to invoke “higher law” for the sake of reshaping the law to their own fancies.

As I’ve had the occasion to point out in this space, Barack Obama has already offered us intimations of the way in which black activists have recoiled from Lincoln’s teaching and come to despise the American Founding. But on the other side, I found myself reproached by one of our readers for invoking Lincoln and associating him with the cause of a government restrained by law. The Civil War brought a notable strengthening in the powers of the Federal government, though it is arguable that this was a fleshing out of principles that marked the national government from the very beginning. But it has also become a fable among conservatives to accuse Lincoln of disfiguring or wrecking the Constitution in the cause of saving the Republic. That criticism warrants more than a cursory response, for the critics are apparently far from understanding what a fable they have taken as a truth and how deep is the lie they have absorbed. Apart from the historical record itself, they have little awareness of the connection in principle, for Lincoln, of a government by consent and a government under self-control. But that for next time.

Several years ago the late Cardinal Lustiger came in from Paris to give a lecture in New York, at the invitation of Fr. Richard Neuhaus. The cardinal pointed up that familiar maxim that has been taken as the signature tune of modern liberalism: that my personal freedom ends at the point at which I begin to injure, or affect adversely, the interests of others. (Or as Justice Douglas once put it, my freedom ends at the point where my fist meets the face of someone else.) The cardinal raised the question we should have seen lurking there all the time: Do we mean “all” other persons? Do we incorporate the premise that we have an equal concern for the injuries we may inflict on everyone or anyone? Might it be possible to revise that aphorism by saying, “Our freedom ends at the point at which we begin to affect adversely [wink, wink] …those people who count?” In other words, does that slogan, that summoning “principle” of liberalism, make sense only as it absorbs the premise that “all men are created equal?”

But of course the reliance on that proposition has been serenely overlooked by the liberals and libertarians of own day, as seen most dramatically, of course, in the matter of abortion. The child in the womb is somehow screened from view as a “human person,” or as a being whose injuries may in any way count. Several years ago, when I was giving a talk to the Federalists at the law school at Yale, one libertarian student asked just why the pregnant woman should accept any setback to her plans or interests out of a concern for that “thing” she was carrying. In response, I asked him to explain to me the grounds on which that pregnant woman counted for him, as a being with moral standing, whose injuries had a claim to our concern. And when that account is offered, I suggested, he would have a hard time explaining why, on precisely the same ground, that being in the womb, of the same humankind, did not have a claim standing on the same plane. At every point, we come back to the same thing, that one “hard nut to crack.”

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.