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Confederate Flag-Waving at the Supreme Court

“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.[1]

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.”

[1] 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.””

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 04, 2015 at 10:38:07 am

Ken: Nice piece.

Thomas appears to be the brightest light amongst the Black Robes and he applies this intelligence across a wide range of decisions. He is, I think, hoping for an opportunity to deal a serious ( fatal is not currently possible given the composition of the Court) blow to the Admin State, or as R. Richard Schweitzer refers to it The FAS, of which the Court now seems to be arrogating to itself a more prominent (legislative) role.

Let's hope Thomas gets the opportunity.

Below is an interesting take on matters of liberty by the ever interesting Angelo Codevilla from todays NRO.

http://www.nationalreview.com/article/420743/truth-safeguards-liberty

And to you, Ken, Happy Fourth of July, even if the Black Robes prefer to honor it more in the breach than the observance.

gabe

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gabe
on July 04, 2015 at 22:39:21 pm

Thanks, Gabe. Angelo is ever interesting.... Thomas did march the Court right up to the point of overthrowing the ACA, and that was quite a feat of statesmanship.

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Ken Masugi
on July 04, 2015 at 22:41:21 pm

I post my aunt's obituary, which is a powerful vindication of Thomas's mention of the dignity of those in the relocation camps. http://magicvalley.com/lifestyles/announcements/obituaries/obituary-dorothy-misao-hirai/article_481c4d5d-3af5-569c-ac28-6624a53d1668.html

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Ken Masugi
on July 05, 2015 at 10:10:53 am

Nice obit AND nice life! Goes to prove that dignity is within you not without and it neither needs, nor can sustain itself under a grant of, government largesse.

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gabe
on July 06, 2015 at 08:52:24 am

[…] Confederate Flag-Waving at the Supreme Court […]

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Shut up! They Said - Freedom's Floodgates
on July 06, 2015 at 20:38:48 pm

Dr. Masugi is a good and decent scholar, but his continued attempt to villainize Calhoun rests upon the inaccurate scholarship of his mentor, with whom I debated this matters in a decorous manner over the years.

More accurately, Calhoun's accomplishment lies in his gift for diagnosis, although his death in 1850 prohibited a more integrated participation in the cure. Many who would attempt to assume Calhoun's philosophical and political mantle during the nineteenth and twentieth centuries actually committed a great injustice to his political theory by ignoring its more abiding qualities. In articulating the inherited understanding of properly constituted popular rule for his political situation, Calhoun may be called the last of the Founders. The worldview he imbibed from early life, his own republican understanding of popular rule, and his efforts directed towards preventing the dissolution of the regime are indicators of both an attachment to and a willingness to defend the American republic. While neither providing a programmatic transition to the future nor simply rearticulating an appreciation of constitutional restraint within popular rule, Calhoun presented an authentic and prescient American understanding of social and political life that could contribute even today to remedying problems associated with popular rule in America and elsewhere.

Finally, Calhoun would loathe the recent decisions of the current court, as I have noted in earlier articles on this site. See http://www.libertylawsite.org/2013/10/24/why-justice-breyer-should-put-down-the-baguette-and-grab-a-hot-dog-and-beer

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Dr. Lee Cheek
on July 07, 2015 at 13:20:37 pm

The "Calhounian principles" and "new Confederates" lines are embarrassing. Tossing off these slogans without a supporting analysis is both unfair and self-defeating.

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David Frisk
on July 07, 2015 at 14:23:49 pm

Dr. Cheek:

I do remember the "baquette" piece - rather enjoyed it.

Wonder if you would articulate your defense of Calhoun on these pages - could be interesting? I. too, have a problem with Calhouns dismissal of natural rights and it would be something of interest to see this perspective.

Or perhaps at Nomocracy in Politics blog (have you also written for them/).

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gabe
on July 09, 2015 at 13:31:22 pm

Lee, sorry, have been on the road, so I am replying only now. Your version of Calhoun would be something other than the Calhoun Jaffa and I following him have written about before. "Many who would attempt to assume Calhoun’s philosophical and political mantle during the nineteenth and twentieth centuries actually committed a great injustice to his political theory by ignoring its more abiding qualities." That may well be true, and we should respect that as a possibility. Nonetheless, it is true that a major Progressive thinker, Charles Merriam, makes Calhoun crucial for his Progressive political science. You can read and judge his attempt in his A History of American Political Theories, available on google books. See c. 7.

I don't think Russell Kirk, for example, had a full grasp of Calhoun when he endorsed his work and am confident he would have gone to different conclusions ha he been more versed in it.

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Ken Masugi
on July 09, 2015 at 13:38:25 pm

This link should have been included--the last footnote is from that article and should have been in quotes. http://www.libertylawsite.org/2013/03/20/crisis-of-the-calhoun-united/

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Ken Masugi
on July 10, 2015 at 23:31:20 pm

Granted, there's more in that one.

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David Frisk
on July 10, 2015 at 23:50:35 pm

The thrust of the article is that the Supreme Court by Kennedy's once again adopting a radically different notion of freedom from that of the founders and especially Madison effectively seceded from the original Constitution. Their notion of freedom is based on the Progressive one which owes its origins to Calhoun.

Lee's assertion that "Calhoun may be called the last of the Founders" reminds me of the claims of TR and FDR that they are bringing the founders up to date. I didn't even bother to bring up slavery here, but that poses a real stumbling block to saving Calhoun.

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Ken Masugi
on July 25, 2015 at 17:08:50 pm

The "thrust of the article," though, isn't what I was complaining about, as should have been obvious from my comment. Rather, it was the facile use of slurs in the first line of your last paragraph. Slurs on both the Court's majority (bad though it is) and Calhoun.

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David Frisk
on July 25, 2015 at 21:32:28 pm

David, if you think my article makes "slurs," then you should have been able to support that charge. You don't. Do you disagree that Calhoun was deeply influential on the Progressive movement? You'd have to refute a lot of Progressive writing. At least your colleague Lee Cheek acknowledges that Calhoun might be misinterpreted to produce that conclusion. I have shown you my argument, with references, http://www.libertylawsite.org/2013/03/20/crisis-of-the-calhoun-united/. It's clear to me that Calhoun deviates from Madison and thus the basis of American constitutionalism. Calhoun's heirs are on the left as well as the right. Note Lani Guinier's Calhounian defense of racial bloc representation in Tyranny of the Majority.

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Ken Masugi
on July 25, 2015 at 23:54:37 pm

Ken, even if I agreed with all of that -- and I don't challenge it -- I would still think your reference to the Court's majority "advancing Calhounian principles," followed by a claim that this makes them "the new Confederates," was an embarrassingly cheap and unjustified insult to justices who can fairly be insulted on far more sensible grounds than a false association with justifications of slavery and with a war largely intended to preserve slavery. It also falsely insults both new and old Confederates -- the real kind -- by associating them with the majority's absurd reading of the Constitution in 'Obergefell.' No one in their right mind thinks they would have voted that way, including you, so why play this rhetorical game?

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David Frisk
on July 26, 2015 at 09:32:03 am

David, If I understand this latest iteration of your accusation: Sorry, it wasn't a rhetorical gibe. My piece didn't mention slavery--I emphasized the attack on the Declaration and its conception of natural rights, one that Calhoun joyfully engaged in and that the Court's majority did as well: The Court is as distant from America as the Confederacy. While I appreciate your efforts to save me from embarrassment, I'm afraid I'm shameless on this point, so your attempts to reform me once again are in vain.

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Ken Masugi
on July 26, 2015 at 15:44:33 pm

If you can't read your own words in the ways that (more than a few) others are likely to read them, and adjust them accordingly, then I imagine you will let yourself in for more embarrassment. Readers might not dare to call you out on this like I have, but it's very likely that some -- quite reasonable ones like me, not nuts -- will quietly think: what the hell?

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David Frisk
on July 26, 2015 at 16:26:37 pm

I'll just have to take that risk. I like your assessment of yourself: " Readers might not dare to call you out on this like I have, but it’s very likely that some — quite reasonable ones like me, not nuts...."

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Ken Masugi
on July 27, 2015 at 18:09:51 pm

An utterly obscure comment on your part. Is it hostile? I can't tell.
No one can, unless they're able to read your mind. If it is hostile,
be straight with us and make that clear. If it's not, make that clear too.

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David Frisk
on July 27, 2015 at 18:12:48 pm

How can this possibly be hostile? I'm just quoting you.

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Ken Masugi
on July 27, 2015 at 20:58:09 pm

I have made no "assessment" of myself other than to say I am "quite reasonable" and not a nut. Your comment that you "like" that "assessment" is either sincere or insincere. If it's intended to be sincere, then the honest thing would be to make that clear. If insincere, it raises the question of whether you think I'm a "nut." If you do, that would be hostile. It would also be, more importantly, a childish and disreputable way of concluding your argument.

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David Frisk
on July 27, 2015 at 22:19:23 pm

David, I see that we continually misunderstand each other. I have tried to respond to your comments, but I get no benefit from your repeated corrections, so consider me a poor student and cease wasting your valuable time in attempting to correct me . I apologize for any offense I have given you, but please consider whether your own tone reflects the spirit of friendly correction. As author of a well-received book on William Rusher you have made a great contribution to conservatism, and I urge you on to another such volume.

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Ken Masugi
on July 27, 2015 at 23:30:00 pm

Fair enough. Ultimately it is difficult to argue style.

I am working on one book and continuing to actively
conceptualize another.

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David Frisk

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.