We underestimate today the seriousness with which Americans initially took the idea of corporate consent.
“I understand you are preparing to celebrate the ‘Fourth,’ tomorrow week. What for?” —Abraham Lincoln‘s words to the people of Springfield in 1857, reacting to the newly announced Dred Scott decision
The ferocity of the dissents in the final days of the Supreme Court’s term obscured the most profound of the dissents, that of Justice Clarence Thomas in the same-sex marriage case, Obergefell v. Hodges. In fact the Thomas opinion gives the most radical recent account of how American government has deteriorated.
“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built,” he writes. The reason Thomas is the most insightful of the justices on the Constitution is because he understands it in light of the Declaration of Independence. Not just in theory (see his Adarand concurrence) but in practice, he is the justice who links the flaws of the contemporary administrative state and Progressive government with Dred Scott—the cause of liberty today with the original sin of slavery.
The Obergefell majority is in error—not only not originalist in its reasoning, but completely at odds, Thomas is saying, with the Declaration of Independence itself. That is to say, at odds with the idea of America. The majority, he writes,
rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.
In making this judgment, Thomas is not so much addressing same-sex marriage itself as the reasoning the Court adopted. For it to reason in this way shows the place in American political life that the Court has arrogated to itself, says Thomas. His opinion exposes the consequences of the Progressive divinization of History over the Declaration of Independence, of mystery passages over individual natural rights, of being forced to be free over exercising liberty, of unlimited government over constitutional self-government.
Compare the Franklin Roosevelt version of the social contract—between government and citizen—with the version put forth by Locke and the Founders. The latter is a contract between citizens, who then consent to grant to government limited powers. The same-sex marriage decision reinforces the FDR version of how we govern ourselves. It makes government responsible for all that is good.
The Thomas passage that makes that clear is:
As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment.
By embracing this understanding of liberty, the majority “apparently disregards the political process as a protection for liberty.” Thomas might have cited Locke there, on government by consent, along with Lincoln’s words in his First Inaugural:
Plainly, the central idea of secession, is the essence of anarchy. A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people, Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy, or despotism in some form, is all that is left.
In endorsing its conception of liberty to the detriment of the democratic branches of government, has the Supreme Court not seceded from America? In not permitting “deliberate changes of popular opinions and sentiments,” has it not approached “despotism in some form”?
Contrary to the Court’s assumption, government is not responsible for all that is good, and this includes “human dignity.” Saying so might be controversial but Thomas invokes the Founders to back it up. He draws a fundamental distinction between the Founders’ understanding of “human dignity”—he might have said equality instead—and the Court’s:
Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that ‘all men are created equal’ and ‘endowed by their Creator with certain unalienable Rights,’ they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built. The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
The consequence, he calmly notes, is that the Obergefell majority’s
invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.
The danger of Thomas’ argument here is that someone might misunderstand him to say that the government could never violate inalienable rights. It could. But he is absolutely right in insisting that nothing can take those rights away. Even when they are being violated, they are, by definition, there. Each American owns himself, and hence government proceeds legitimately only via consent.
Again, Thomas might have cited Lincoln here about the authors of the Declaration of Independence—namely that they
did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.
Thomas might have noted that this fundamental premise about inherent liberty and dignity does not mean the “enforcement” of them may not unfold over time through laws. As he had said in 2003, in his dissent in Lawrence v. Texas:
If I were a member of the Texas Legislature, I would vote to repeal [the anti-sodomy law]. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
He draws this conclusion from his premise that “our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State.”
Moreover, Thomas, as we see from other opinions, understands the majority’s flaw in Obergefell as connected to what has gone wrong with the administrative state. His rootedness in the Founding affords him a clear view that this is a different form of government being advocated and gives him the ability to cut through all the “Chevron deference” fog. We note here a signal achievement: to have identified the common evil in what are conventionally known as civil liberties and separation of powers cases. (See for example the Thomas concurrence in the EPA case involving deference to the administrative state, which the Supreme Court is becoming part of.)
These cases bring to mind the recent denunciations of the Confederate flag. The arguments against displaying it were often inapt, for that flag was a symbol not primarily of race, but of secession—the attack on constitutionalism. Now the Supreme Court has become the apostle of the stars and bars, when its majorities reflect the Southern political philosophy of John C. Calhoun in their attacks on the legitimacy of the Madisonian Constitution.
Majority rule in the 50 states and in the nation become illegitimate in light of Calhounian claims about minorities to be protected—minorities who now become empowered to rule. Without explicit reference to slavery (though much to race), the Progressives used Calhoun’s attack on natural rights, his protection of elite minorities, and his dependence on historical change to develop the political science that leads to Obergefell v. Hodges.
By advancing Calhounian principles, a faction on the Supreme Court has become the new Confederates. For many Americans the national government has become more alien than ever, not just in the Pelosi-Reid Congress or Obama presidency. How can such a government provide for the “safety and happiness” mentioned in the Declaration that we are celebrating today? America needs Lincolnian statesmanship to resurrect the Declaration and the Constitution—and to bring about “a new birth of freedom.”
 Hence the embrace, on the part of the early Progressive political scientists, of Calhoun’s thinking (and they had no problem with his racial views). Calhoun’s approach would do away with the “superstition” of natural rights that plagued antebellum political thought, in favor of science and historical progress or Darwinism. This rejection of natural rights in favor of natural science leads to Calhoun’s embrace of unlimited sovereignty, that is, unlimited government. As the late Harry Jaffa observed: contrary to Lincoln, Calhoun believes that “right is founded on might.””