Originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change.
Ken Masugi argues that conservatives and libertarians must be “radical to grasp the truth.” He certainly is radical in casting Robert Nisbet and, with him, it would seem, other Burkeans who see little platoons rather than isolated individuals as the building blocks of society outside “the foundation of American politics,” which Ken identifies with the Declaration of Independence.
There are reasons to doubt that the Declaration rather than the Constitution is America’s founding document. Foremost among them, Willmoore Kendall and George W. Carey remind us, is that its self-conscious purpose is merely to announce a separation with Great Britain while supplying no direction for the political order that will result, whereas the Constitution explicitly indicates an intent to “ordain and establish” a regime and gives the details for how it will operate. But if we are to look prior to 1787 for America’s foundations, we might as well go all the way back, and that means to the Mayflower Compact, a document whose animating symbol (Kendall and Carey again) is deliberative self-government, not individual rights.
It has become commonplace to see the Declaration as a radical break with this tradition—and, in some circles, the Constitution as a radical break again—but a continuum of this symbol is clearly traceable. Ken notes that the conservatives and libertarians published in Natural Rights, Individualism and Progressivism agree that the Declaration pertains to individual rights. But they do not settle the question simply in this one volume, and certainly not within the parameters of conservative thought. A range of distinguished commentators has questioned the individualist interpretation of the American Founding. Kendall and Carey are perhaps foremost among these. Barry Alan Shain, Ronald M. Peters and other thinkers join them.
One reason, as I argued last month in this space, is that the individualist reading renders the Declaration’s purported inalienability of the rights to life, liberty and the pursuit of happiness nonsensical. In a Lockean context, these rights are not only obviously alienable—that is, exchangeable for an equivalent—by individuals, their alienation in exchange for the protection of the community is the entire basis of political society. The “corporate” reading of the Founding suggests, instead, that it is the American people, as a political community, who possess the inalienable rights of the Declaration. Thus it is “the people” who possess the right to alter or abolish an abusive government, and the Declaration announces its intention to dissolve the bands linking “one people” to another. Similarly, the violations of rights of which King George is accused—which form the much-overlooked heart of the Declaration—consist mostly not of trespasses against individuals but rather of impediments to deliberative self-government by the community: “For suspending our own legislatures,” for doing thus-and-such “without our consent,” etc.
The core natural right here would appear to be self-governance, which has the benefit of rendering the Declaration reasonably consistent with the tradition that both precedes and follows it—in the latter case, the Constitution, whose Preamble does not mention equality as a goal of the regime. Some argue this is because the Constitution was an insidious project to protect slavery; others that it was an equally sinister scheme to shield elite wealth. But equality encompasses far more complex theoretical conditions than either the racial equality that was properly encoded in the Constitution in the Civil War amendments and legally achieved in the civil rights movement, or the economic equality Progressives sought. A general declaration that equality was the foundational purpose of the newly independent American states would have involved the signatories to the Declaration in a volatile theoretical project there is scant historical evidence they intended to join.
Masugi is, nonetheless, absolutely correct to note that the Declaration is both practical and abstract. The question is what it practically protects. If, indeed, it protects individuals absolutely against the authority of the community, it is difficult to see what justifies the hardly individualist “wisdom of the serpent” that Masugi, with Steve Knott, asserts is necessary for national defense.
Nor is this an abstract debate. A great deal is at stake. While I would not impute such views either way to Masugi, the individualist interpretation is conducive to the sort of judicial supremacy that has empowered the courts to protect individuals against the judgment of the community. It is, in turn, hostile to the view—here we must defend Nisbet’s honor and, with it, Burke’s—to the Aristotelian belief that the political life is best for man.
Ironically, this desire to construct society on the basis of individuals, as Tocqueville teaches, ultimately leaves individuals alone and exposed, their rights less secure than in a context in which the community is habituated to respect them. As Mary Ann Glendon has argued, rights talk tends to leave individuals with their rights and little else. It is attachment to intermediate institutions—family, religious groupings, civil associations—that gives rights genuine security and meaning as opposed to simple legal prescription.
That is not to say there is not a legitimate individualist case to be made for the Declaration. There is. But there is a conservative case for community that—as finely as Nisbet embodies it—well precedes him, and the Declaration too. To cast it aside as hostile to the Declaration is also to sweep away the long tradition in which that document—and we still today—stand.