Children Astray in the American Regime

In my last column, I raised the question of whether the children who are being raised now under our institutions and laws were really any longer children of the American regime. My readers who find their vocation in teaching would readily grasp that I touched, in that last column, only the surface of things. One correspondent wrote that he finds, among his students, a frequent reference to “the rights the state gave us.”

The assumption, of course, is that all of our rights must have been created through the laws posited or enacted in any place. And what is screened out, most notably, is the notion that certain rights arise from the nature of human beings, or from the principles of right themselves.   But here the students are picking up slogans diffused widely among older people. Don’t we commonly hear lawyers or commentators invoke “those rights we have through the First Amendment” – as though, in the absence of that Amendment, we would not have had the right to assemble or publish or practice our religion?

All of that brings back the argument that took place at the very beginning over the question of a Bill of Rights. We find many judges and lawyers who are apparently unaware of the fact that there was a serious argument at the beginning, and that the reservations about a Bill of Rights did not come from people who were reserved about rights. In fact, the deeper concern was that a Bill of Rights would have a truncating or narrowing effect on our rights: It would impart the impression that the rights written down were far more important than the rights we had neglected to write down. The result would be to instruct the American people in a false understanding about the very ground of their rights: that they had only the rights that were written down and enacted in the positive law.  

But that for another time. The issue that has sprung up more recently has been the curious tendency of President Obama to seek the consent of the United Nations before he engaged American forces to counter and overthrow Col. Gadhafi in Libya. The students have readily picked up the line offered by the White House and echoed in the media: that the endorsement of the United Nations gives “legal” sanction to this intervention. “Legal?”

The children of the American regime were once weaned on the teaching of the Declaration of Independence, that the only rightful governance over human being was one that “deriv[ed] its just powers from the consent of the governed.” What properly constituted “legislature” could have legislated the “law” that was being attributed now to the United Nations? It is not as though the voting delegates at the United Nations have been elected or even appointed from governments that are themselves elected by their own people. The Constitution gives Congress the authority to punish offenses against the Laws of Nations, and “Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.”

The UN: No legistative authority to make American laws

But notice that what was enforceable in treaties or the laws of nations depended on the constitutional processes of our own country – in Congress making laws and the Senate confirming treaties. As Chief Justice John Marshall explained long ago, international law was really predicated on the premise that “no one [nation] can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone.”

Some of my students argue that it would be useful to have the judgment of our own government checked by the opinions of a wider “world community.” But what “world community?” Do they mean to consult the moral perspectives of the governments that treat conversion to Christianity as a capital offense; that sustain female circumcision and polygamy; that impose the strictures of sharia law?

If one wishes simply another moral perspective to be brought to bear on the Executive from some other organization, one could as plausibly consult the American League or NASCAR. Or we might even find that check where the Founders thought it would be found: by consulting – gasp – the American Congress.

Let us suppose that there are moral reasons that would justify this latest move to dislodge from power a vicious despot who had ordered the killing of Americans. If there were moral reasons that justified this move, would they have ceased to be compelling if the United States had not gained the acquiescence of the Russians and the Chinese on the Security Council of the United Nations? What moral reasons could possibly hinge, for their validity, on the acquiescence of the thugs and bureaucratic despots who rule in these places? 

In fact, if we thought we had American interests that justified action in this situation, why would we choose to buy our freedom of action from the Russians and the Chinese? And it cannot be supposed that this acquiescence was had without paying a price. But that we would pay the price, and seek consent where consent cannot be morally required, is just another sign of an administration that is ever more detached from the principles that constituted the government it has come to head without quite understanding. 

The adolescents among us cannot tell the difference, because they have an administration now no more tutored in the American tradition than they have been.

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.