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George Will’s Libertarian Turn

As flattered as I was to attract George Will’s attention—in his July Fourth column, no less—being criticized by a Pulitzer Prize-winning essayist left me somewhat perplexed, for several reasons. Allow me to explain. First, although I have engaged Will directly in the past, he used his nationally syndicated column to take issue with something I had written in response to someone else—specifically, Ed Erler (a disciple of Harry Jaffa) regarding Robert Bork’s view of the Constitution. My disagreement with Erler centered on whether (as Jaffa contended) the Declaration of Independence infuses the Constitution with transcendent principles of “natural rights” or “natural law” that judges must enforce to limit the actions of representative government. 

On this question, I agree with Bork that the Declaration has little or no relevance as a guide to constitutional interpretation. In our system of dual sovereignty, the U.S. Constitution is a social compact at the federal level, supplementing—but not replacing—the states and their state constitutions; the Declaration, in contrast, was simply a proclamation of independence from Great Britain—an ordinance of secession. “Originalists” construe the Constitution based on the original public meaning of the Constitution itself. How was the Constitution understood to those who drafted it and ratified it? Will’s argument that the “true meaning” of the Constitution must be found in the Declaration is both counter-intuitive and non-originalist. 

Second, Will’s joining forces with Erler/Jaffa concerning the Declaration as a fount of natural rights is highly ironic because the theory Jaffa midwifed leads in two diametrically opposite directions: Erler/Jaffa construe “the Laws of Nature and of Nature’s God” referenced in the Declaration as embodying fixed and immutable principles of 18th century morality—forbidding, for example, the legalization of abortion or the validation of same-sex marriage, even by legislation. Will, by contrast, adopts the libertarian theory of natural law (advanced by Timothy Sandefur in The Conscience of the Constitution, among others) that confers on all citizens the unenumerated right to be free from majoritarian interference—that is, laws enacted through democratic self-rule. (The Sandefur theory looks suspiciously like a Randian state of nature, not the popular sovereignty—“consent of the governed”—demanded by the Founders.) 

In other words, the same principles of “natural law” either compel or prohibit abortion rights and gay marriage (to cite just two examples). So much for the Declaration serving as a useful guide to constitutional interpretation! Will did not, however, acknowledge this dilemma. Nor did Will address the growing body of scholarly literature rejecting the dubious notion that the Declaration animates the Constitution (even though the Declaration was never ratified, predated the Constitution by more than a decade, is not mentioned in the Constitution, and was scarcely cited in the Federalist Papers). According to Will, the fact that the Declaration’s primary author, Thomas Jefferson, wasn’t even present in Philadelphia for the Constitutional Convention is “obvious and irrelevant.” The larger point, however, is that any discussion of the Declaration was largely absent from both the Convention and the subsequent ratification debates. In the face of this record, it is specious to contend that the Declaration lurks invisibly in the Constitution.

I am hardly the first person to point out the shortcomings of the Jaffa thesis, which is the third reason for my consternation at being singled out by Will. In addition to Bork, originalists who reject the primacy of the Declaration include Antonin Scalia (in his Troxel v. Granville (2000) dissent and elsewhere), Michael McConnell, Lino Graglia, Lee Strang (author of a recent article in the Harvard Journal of Law & Public Policy entitled, “The Declaration of Independence: No Special Role in Constitutional Interpretation”), Walter Berns, Russell Kirk, historian Kevin Gutzman, M.E. Bradford, and many others. Indeed, on the Right the proponents of natural law as a guide to constitutional decision-making overwhelmingly tend to fall into one of two camps: either disciples of Jaffa (sometimes referred to as “Claremonsters”), or libertarians (each of which, as mentioned earlier, apply natural law to reach widely divergent conclusions). Virtually all serious originalist scholars not associated with one of those two camps reject the Jaffa thesis.

The appeal of “natural law,” like that of all non-originalist theories, lies in its subjective and indeterminate form—natural law means whatever its proponents want it to mean. As Bork prophetically stated in a 1982 essay in National Review, “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” Not everyone is happy with the policy choices embodied in the Constitution, or in the laws enacted by state legislatures, and Congress, pursuant to their constitutional authority. Those who are dissatisfied can seek the repeal of laws with which they disagree, or amendment of the Constitution to compel a different outcome, but these options are difficult and uncertain. Or the dissatisfied minority could resign themselves to the decision of the democratic political process. In a system governed by majority rule, one will not always be aligned with the majority.

Ideologues discontented with democratic rule sometimes choose a different option: They resort to creative constitutional theories that conveniently produce the objectives they desire—inviting unelected judges to impose policies they find congenial, regardless whether the Constitution or laws dictate such a result. Alas, George Will—once a stalwart conservative—has undergone a libertarian epiphany and now embraces this result-oriented sophistry. Will advocates natural law, drawn from the rhetorical well of the Declaration, to justify the libertarian political philosophy he has now adopted. His Foreword to Randy Barnett’s 2016 book, Our Republican Constitution, is a paean to counter-majoritarian rule—an activist judiciary enforcing unwritten “rights” to be free of external constraints. (Ed Whelan calls Barnett’s theory “a fantasy libertarian constitution.”)

Earlier in his career, Will sensibly rejected such nostrums. Once a self-proclaimed Burkean conservative—a “Tory,” even—Will eschewed free market economics as a substitute for political philosophy. He was mindful that a virtuous society is indispensable to the maintenance of ordered liberty, and that government plays an essential role in cultivating moral values. In his Introduction to The Pursuit of Virtue and Other Tory Notions (1982), Will quoted Burke in this regard: “Manners are more important than the law.” Will warmed to the topic in a later essay, declaring that “Real conservatism requires strong government.” 

Describing the overriding aim of liberalism as the “expansion of liberty,” Will advocated instead a sharply-contrasting model of conservatism:

Real conservatism is about balancing many competing values. Striking the proper balance often requires limits on liberty, and always requires resistance to libertarianism (the doctrine of maximizing freedom for private appetites) because libertarianism is a recipe for the dissolution of public authority, social and religious traditions, and other restraints needed to prevent license from replacing durable, disciplined liberty. The truly conservative critique of contemporary American society is that there is too much freedom—for abortionists, pornographers, businessmen trading with the Soviet Union, young men exempt from conscription, to cite just four examples. (Emphasis added.)

As a conservative, I must say that I find Will circa 1982 far more persuasive than the 2019 iteration. The “balancing of competing values” is called politics, and is expressed by representative self-government—elections, legislation, and other manifestations of a democratic republic. 

At some point, Will lost faith in these institutions, and has chosen to take refuge instead in the theory of “judicial engagement,” essentially government by what Learned Hand called “a bevy of Platonic Guardians.” Even a public intellectual is entitled to change his mind, but in Will’s case he has made an abrupt U-turn rather than a slight course correction. Will now enthusiastically embraces positions he once publicly—and thoughtfully—abhorred. By quarreling with me, Will is really arguing with himself. He was, I submit, right the first time.

Reader Discussion

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on July 12, 2019 at 08:37:03 am

Where do Jaffa or Erler argue that “the ‘Laws of Nature and of Nature’s God’ referenced in the Declaration [embody] fixed and immutable principles of 18th century morality—forbidding, for example, the legalization of abortion or the validation of same-sex marriage, even by legislation”?

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Glenn Ellmers
on July 12, 2019 at 09:10:17 am

In a series of essays / speeches which may be found in "The Rediscovery of america" edited by Ken Masugi and Ed Erler you will find Jaffa doing just that in some detail.

Perhaps, Mark could have phrased this somewhat differently as "immutable" would imply something of greater endurance than being confined to 18th century morality. My reading of Jaffa and the Claremonsters leads me to conclude that they placed greater emphasis on the "immutability" of morality than it's time contingent nature.

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gabe
on July 12, 2019 at 09:26:55 am

Thanks, Gabe.

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Mark Pulliam
on July 12, 2019 at 09:35:52 am

Conversations like this always focus on the balance/conflict between a political process (messy) and a Platonic rule-by-experts regime.

Rarely is the topic of "where is government authority exercised?" addressed. If people agree that any function of government be performed at the lowest level of government (state, county, municipality) capable of doing so, we solve a lot of the tensions regarding the inability of an individual or small interest group to influence its environment and hold its leaders accountable.

That, to me, is what real conservatism is about.

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Al McBride
on July 12, 2019 at 10:21:47 am

Will's libertarian turn is not at all abrupt. It has been manifest for > 15 years. At one time, it seemed as if one column in five was devoted to denouncing campaign finance regulation. The other aspect of Will is that he's been ensconced in political Washington since 1970. His default setting is to refrain from criticism of the issue of the Capitol Hill nexus and always has been (recall, for example, his antagonism to tax reform in 1985). He's also had contempt for just about every person who has sat in the President's chair in the last 50 years, with a dispensation granted only to Ronald Reagan. His hostility to the current occupant is so thorough that he's now recommending the Republican Party face defeat for the unpardonable crime of nominating him and corralling the votes to elect him. At this point, if he has any constituency left, it is editors and casting directors looking for a poodle in lieu of an actual promoter of starboard opinion and argument. He is more effective in that role than David Brooks or Ross Douthat could hope to be.

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Art Deco
on July 12, 2019 at 10:30:16 am

You think? I'd say the question is one of jurisprudence. The Constitution vests legislative power in conciliar bodies of elected officials. The argument for judicial review is that there are occasions where constitutional provisions conflict with statutory law, and thus the statutory law is properly treated as null and void. The thesis is that the Constitution 'incorporates' the Declaration (dubious) and that the semantic content of the Declaration tolerably tells judges how to rule and how not to rule (even more dubious). Don't believe either party to this dispute is arguing that judges should act as 'platonic guardians'. Wm Brennan and Laurence Tribe certainly subscribed to that view. See Bork on Tribe: his theory of 'constitutional interpretation' is so protean it would ordinarily be excluded from serious considerations; it is due to the social and cultural composition of the judiciary and the professoriate, you have to address it.

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Art Deco
on July 12, 2019 at 10:48:51 am

The people (as the Founders always said) believe in the Declaration and embrace it, always. They have always assumed that the Constitution was created to protect those ideas and to enable an ordered society around it. The "smart set", and Mr. Will is a perfect example of it, has other ideas about all that as he both fears and loathes the "mob" to some extent. The "split infinitive" crowd are always out there beyond the walls of the Imperial City and scare the hell of out him and his friends.

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Airwine
on July 12, 2019 at 10:52:33 am

Originalism is likewise open to the charge of being a vestige of a bygone historical era. And originalist judges reach opposing judgments frequently enough to demonstrate that originalism, too, fails to inoculate against subjectivity and indeterminacy. Thus, it is more accurate to say there are originalisms rather than a unitary originalism. The originalist's gravest problem, however, is that he cannot justify why originalism is to be chosen over other doctrines of constitutional interpretation. The standard modes of justification fall into two classes of error. One is to justify originalism on originalist terms, that is, an originalist orientation or inquiry supplies the reasons in favor of the doctrine. This is the error of circularity. The second class of error is to (implicitly) defend originalism as reliably producing a certain class or range of policy outcomes. This is the error of consequentialism. In sum, what originalists must face more is that the core problem of an overbearing judiciary cannot be relieved by any mere doctrine of constitutional interpretation.

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Mark H
on July 12, 2019 at 11:04:53 am

Such an old issue, but an interesting one.

If by conjoining the Declaration and the Constitution, one wants to argue that both documents are formally tied in law, then no, I agree with Mark Pulliam.

If, on the other hand, one only wants to say that the spirit of the law is informed by the Declaration, then I agree with George Will.

It seems to me, however, that both sides in this long running debate frequently swerve way over these lanes. The former will argue as though the Declaration ought never to be invoked while the latter will imply that it is in fact a legally binding part of the social compact. So I am generally perplexed by such interchanges.

As to the Declaration being largely absent in the ratification debates, well this is simply not so, Pauline Maier's claims notwithstanding. Have a look at Pennsylvania.

The Declaration was raised repeatedly by James Wilson and his Anti-federal opponents, a very important set of debates. Not only was it cited, they quoted it at length to (perhaps better, AT) one another, Wilson reading the more nationalist portions, while William Findley and his colleagues cited the more confederal parts.

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Hans Eicholz
on July 12, 2019 at 11:26:10 am

Mr. Pulliam makes his argument against Will by 1) muddying the issues by conflating Will's approach with Erler's, thus conjuring up an asserted, but chimerical contradiction by Will; and 2) by smuggling in the premise that one cannot make a moral argument, as Sandefur and Rand make, for rights as objective requirements of individual human existence. Instead he sniggers that they are just arbitrarily asserting an "unenumerated" right.
Will's view is his own. While I don't know if Will's approach is perfect all the way down to first principles in political economy and morality, Pulliam should argue against Will's position directly rather than by reference to alleged allies, and by reference to experts who disagree, historically, with the view that the Declaration is the philosophical base of the Constitution. In effect Pulliam is attempting an argument from authority by bringing up these opponents of a philosophical tie between the Declaration and the Constitution.
Mr. Pulliam also refuses to engage the moral and philosophical arguments made very clearly in "The Nature of Rights" by Rand, and in Sandefur's book, which show that rights exist prior to any government's existence or any government's acknowledgement of such rights. Rather than provide any substantive answer against either of their moral/philosophical arguments, he simply refers to some unclear "Randian state of nature" which I guess is signalling to the reader that he will not deign to discuss Rand's actual arguments. His approach amounts to an argument from incredulity, with no content.

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John Gillis
on July 12, 2019 at 11:49:44 am

To put forth the DoI as "simply a proclamation of independence" is to argue a building's foundation as merely a placeholder for which a magnificent building (constitutional republic) is to be erected. Remove that foundation and neither the building or republic will remain standing. I happen to agree completely with Lincoln's sentiment in his Fragment on the Constitution and the Union.

"All this is not the result of accident. It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of “Liberty to all” — the principle that clears the path for all — gives hope to all — and, by consequence, enterprize, and industry to all.

The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.

The assertion of that principle, at that time, was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple — not the apple for the picture.

So let us act, that neither picture, or apple shall ever be blurred, or bruised or broken.

That we may so act, we must study, and understand the points of danger."

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Olly
on July 12, 2019 at 12:14:54 pm

The Constitution was a reaction to Independence, not an embracing of it. And George Will? Nobody travels from conservatism to libertarianism. It's the other way around. As a 17th century Frenchman said, the faults of the character, like the faults of the face, grow with age.

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james wilson
on July 12, 2019 at 12:18:04 pm

The Declaration was, in essence... a divorce decree from the Brits.

The Constitution... was a prenuptial to a forthcoming marriage of the states.

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Eric Raymond
on July 12, 2019 at 12:38:50 pm

Good article. I've wondered whether George Will's adultery and divorce was part of the reason for his decline (https://books.google.com/books?id=AawSTuz4ldAC&pg=PA92&lpg=PA92&dq=%22george+will%22+divorce+madeleine+mari+maseng&source=bl&ots=QLivjmjDxq&sig=ACfU3U1DRlnO2eHpfbVoV1jJyNxn1UMBJA&hl=en&sa=X&ved=2ahUKEwi2ieft5K_jAhVMI6wKHWVdA0I4ChDoATANegQIChAB#v=onepage&q=%22george%20will%22%20divorce%20madeleine%20mari%20maseng&f=false) . Being Inside the Beltway is sufficient explanation, though.

On natural law: it actually is objective. The idea is that it's like gravity, something in our nature. The problem is that Bork is right: it's hard to be objective about what is natural law and what someone would like to be natural law--- and unlike with gravity, it's a "soft" subject, where it's a lot easier to insert one's bias and to avoid falsification. But it's by no means impossible. One test is to see whether the natural law advocate can come up with examples of bad actions that are not contrary to natural law. I would cite infanticide and polygamy as possibilities, since while sins, they are widely accepted across time and cultures. Aquinas was good on this: he was careful to say what was against natural law and what was against divine law, and did not treat the two as equivalent. It is similar to how he argued that you could prove the existence of God by reason alone, but not the Trinity; he made distinctions.

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Eric B Rasmusen
on July 12, 2019 at 12:55:55 pm

The earlier clause in that sentence is also oddly phrased:
"Second, Will’s joining forces with Erler/Jaffa concerning the Declaration as a fount of natural rights is highly ironic..."
Obviously the Declaration document itself is not a fount of natural rights- nature and nature's God are the fount of natural rights

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CJ Wolfe
on July 12, 2019 at 14:33:30 pm

Thanks for the reminder of LIncoln's eloquence. It's good to be reminded of his metaphor of the frame and the picture.

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John Gillis
on July 12, 2019 at 14:51:13 pm

Sordid attempt by Mr. Rasmusen to bring low an intellectual dispute -- by changing the subject to whether one's marital and sexual interests somehow control one's intellectual life. Though Mr. Pulliam's article is completely unconvincing, and he constructs various blind alleys of argument against Will, Rand, Sandefur, Barnett -- he at least does not imply that an opponent's political philosophy position is ruled by his personal sexual activity.

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John Gillis
on July 12, 2019 at 15:00:51 pm

Thank you John. Pulliam's article is a reflection on the "points of danger" Lincoln warned us about.

Didn't our constitution and all the amendments come about because our founding fathers believed the Articles of Confederation did not fulfill the self-evident truths that the purpose for government is to secure rights and when they fail in that purpose, the people are to alter and/or abolish it? The principles of our republican form of government were self-evident to the generation that created it; not so much to today's generation.

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Olly
on July 12, 2019 at 15:17:15 pm

I see it all the time. It's extremely common for people to change their principles when confronted by sexual or monetary temptation. Talk is cheap, and principles are easy when you don't have any opportunity to bend them.

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Eric B Rasmusen
on July 12, 2019 at 16:41:15 pm

Hans:

Agreed.
As i have always maintained, the Declaration ought to infuse, BUT NOT COMPEL, the Legislative Branch which is duly charged with the duty to resolve otherwise intractable issues, many of which may affect the liberties of the citizenry.
The Judicial is not, and ought not charged with "inspiriting" COTUS with the DOI. Rather, they are to weigh only the statutory law in controversy AGAINST the previously determined compromises made in the constituent law, i.e., COTUS.
In short, no flights of the Bumblebee or the Sweet Mystery of Life by our Black Robed Guardians.

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gabe
on July 12, 2019 at 20:41:36 pm

Nobody switches from conservatism to libertarianism..."??? I think that's empirically false. The upward tick in libertarianism since the Paul presidential campaign is overwhelmingly former conservatives. I'm in three private libertarian Facebook groups, most of which are made up of former conservatives.

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anony
on July 13, 2019 at 01:59:35 am

I just find it amusing that conservatives are attempting to smear each other with the label of "libertarian", and are using a wildly incorrect set of assumptions about libertarianism to make that label even more besmirching.

Will is no libertarian -- although he may have jumped out of the eGOP/RINO frying pan & into the liberal fire -- and libertarianism is not equivalent to either libertinism or licentiousness. It is also not correct to think of libertarianism as "Randian": Ayn Rand's own term for her ideology was "Objectivism", and it had no room for quaint libertarian ideals like the right to life.

Libertarianism is not "a recipe for the dissolution of public authority, social and religious traditions, and other restraints"; it is the only political philosophy that is 100% consistent with both the Declaration and the Constitution.

I say go ahead & have your public pissing match with George Will, but focus on which of you has the better conservative bona fides, and leave libertarianism out of it

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Jean-Marc O'Connor
on July 13, 2019 at 06:27:12 am

The Constitution is the 'supreme law' of our land. Those who say otherwise should seek to amend it, not subvert it by inference or speculative implication. Of course, its beauty is its capacity to entertain a variety of viewpoints which neither shake nor alter the inherent strength of its structure and separations. The Declaration was a mere prelude, albeit tellingly revealing of roots anchored in Common Law, not natural law, with which 'Nature's God' clearly, by the outcome, did not disagree, seeing the imitation in the work emerging from and going to Biblical dimension in trinitarian expression, the integrity sustained in separation. Will is finally turning away from 'social conservatism', which poses as great a threat as socialist liberalism to good Constitutional order, the absence of external restraint to enable the exercise of indwelling Grace, the 'original' and highest aspiration of human dignity in the individual expression embodied in our Founding, Framing and Amending heritage, no less valid or challenged today than when established, the test of time, the ultimate trier of truth, embedded in its process and derived from Divine sanction in His prior and ongoing example. Integrate and appreciate.

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gdp
on July 13, 2019 at 11:07:06 am

It's even more common to level personal attacks on others when you want to diminish the impact of their positions or ideas that you don't like. This has picked up a lot since one of the great conservative commentators has pointed out the obvious flaws of the current President and his spineless lackeys in Congress.

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pete
on July 13, 2019 at 11:19:49 am

Mr. Pulliam pretends to follow original intent, but he has refused the several requests I have made to name one prominent founder who denied that the Declaration was the authoritative source for the Constitution. Instead, he cites modern authors far removed from the framers. Does he not realize that Robert Bork was not a member of the Constitutional Convention and that we should return to the founders as the authoritative source of the Constitution's meaning? Edward Erler

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Edward Erler
on July 13, 2019 at 14:14:13 pm

Ed, it is incumbent on the proponent of a position to document it with facts, not on those who disagree to prove a negative. The fact is, the record is silent—at the Constitutional Convention, in the Federalist Papers, or in the ratification debates—regarding any intention to adopt the Declaration “between the lines” of the Constitution. You can’t cite evidence to support your and Jaffa’s position, because there isn’t any.

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Mark Pulliam
on July 13, 2019 at 14:36:07 pm

Does Jaffa ever talk about the Article of Confederation? If the Declaration of Independence remain important, so must be the Articles, which are actually a constitution. In particular, I wonder whether Congress should be deciding legal disputes between the states (does the 1789 Constitution explicitly supersede the Articles on this point?), and the closing says the Union shall be "perpetual", which is relevant for the Civil War.

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever;

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

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Eric B Rasmusen
on July 13, 2019 at 15:38:35 pm

Ed Erler:

I think it is clear that the DOI did, in fact, infuse / influence the Crafters of COTUS. It cannot be otherwise, especially given both the recent struggles of these same men to free themselves from the yoke of British dominion.

Yet, it must also be recognized / acknowledged that these were practical men engaged in the construction of a new regime AND one expected to endure "for the ages" ( a questionable ambition, one must admit). As practical men, they knew that COMPROMISES with the grand rhetoric of the DOI must be contemplated and effected. In this, they would appear to be following a path not dissimilar to Mr Jaffa himself, who in his later years AND writings expressed a growing, and to my mind, a rather insightful, appreciation of POLITICS, properly understood. Recently, we had in these e-pages another essay on Jaffa and commentary in which (I believe both Ken Masugi and I) offered the comment that for Jaffa his emphasis on praxis was a belated recognition of the importance of politics in and to this regime and to many of its more influential statesmen - Lincoln being, perhaps, first among them.
Are we not to afford the Crafters of COTUS the same sanguinity to recognize, appreciate and implement *politics* even, perhaps ESPECIALLY as regards COTUS? One need only look to the history of the convention and the ensuing debates to understand that COTUS came to be as a result of *POLITICS*.

Are we to also then prepare ourselves for a regime in which the Judicial, in a deluded pursuit of the TRUE meaning of both the DOI, COTUS and the American Regime arrogate (or continue to arrogate) to themselves the authority to "rise above politics" and determine what is both just and constitutional, no matter how far afield from the intention AND text of the Crafters COTUS?

In short, are we to fail to heed Jaffa's later teaching on the importance of politics. In short are all compromises made under the auspices of the "sole Legislative power" to be overridden by our Black robed overseers.
Is politics to be denied?
Is "consent of the governed, via the mechanism of *politics* to become nothing more than an antiquated sound bite resonating only with American History buffs?

To permit the Judicial, beings subject to the same biases, ambitions and frailties as you or are, to assume the mantle of Lawgiver via the instrumentality of "interpretation" of the DOI is even more dangerous than to permit the Judicial to both claim and exercise SOLE interpretive authority of COTUS.

Given Jaffa's appreciation of praxis / politics and consent of the governed, I do not think that he would have approved of the Judicial claiming the DOI as their method of constitutional construction.

Let the DOI "inspirit" the Legislative; let the Judicial weight the statutory law against the TEXT of COTUS - not against some conjured divination of the "Sweet Mysteries of Life" (in any event Mario Lanza sounded much better singing about the Mysteries of Life than did some recent Justice.

(Ken M - if you are reading this, don;t get too upset with my take on it)

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gabe
on July 13, 2019 at 15:42:03 pm

Oops!

should read "as you or I are..."

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gabe
on July 13, 2019 at 17:17:20 pm

I have already given you an extensive argument drawn from The Federalist number 39 where Madison says that the proposed Constitution should be rejected if it fails to conform to the principles of the Declaration. Why do you ignore all the evidence from the founding and the Framers?

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Edward Erler
on July 13, 2019 at 17:29:43 pm

The brilliant, logical, and unimpeachable decision written by Roger B. Taney in Dred Scott sprang directly from the Constitution of his time. It concluded that "No black man has any right which a white man is bound to recognize," and it was dead wrong. It was wrong in law as well as in morality, because it directly contradicted the basic principals on which the existence of this nation rested, that "all men are created equal."

I am proud to say that I, like Abraham Lincoln, have never had a political belief that did not spring from the Declaration of Independence. Nor should this nation.

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tmavenger
on July 13, 2019 at 19:05:32 pm

The only justification originalism needs is the acceptance of a single premise -- that the Constitution is binding.

Implicit in that premise is that the meaning of the symbols used are what they meant when they were fixed. Since symbols have no inherent meaning, any other approach makes the written Constitution no more binding than one that was never composed. A swastika in practice can mean "good luck", "Finnish Air Force", or "idiot teenager graffiti" depending on context of use; any other symbol, including a word, is similarly only given meaning by the context of use. To refuse to adhere to the original context of use is to claim the full freedom to make the symbols mean anything, which is to render the symbols entirely non-binding.

There are accordingly two positions available; originalism, or rejecting the authority of the Constitution. Now, there are plenty of philosophical arguments to be made that one should, in fact, ignore the written Constitution, certainly. And originalism, since it assumes the binding character of the Constitution, makes no argument against people who wholly reject it.

But then, originalism doesn't need to; the argument in favor of the binding nature of the Constitution is so broadly accepted that outside of very limited intellectual circles no one dares honestly argue against it. They instead engage in the intellectually dishonest exercise of talking about "schools of interpretation", as if any school that uses anything other than an originalist approach could be compatible with the socially-fixed idea that the Constitution is binding.

(I will grant that there are valid rival schools of originalism; the fact of internal disagreement among originalists does not change the fact that when venturing beyond originalism, one has ventured beyond the concept that the Constitution is binding.)

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The Lunatic
on July 13, 2019 at 21:46:30 pm

Well, I guess I, too, am a lunatic as I agree wholeheartedly with your comments.

"To refuse to adhere to the original context of use is to claim the full freedom to make the symbols mean anything, which is to render the symbols entirely non-binding."

If this statement not be so, how else could a *distinguished* (perhaps by this statement alone) candidate of the Democrat Party in 2019 for President offer to provide "abortion benefits for transgender males." (see julian Castro).
Words and symbols are apparently as elastic as is the fetid imagination of those who would make immanent those "Sweet Mysteries of Life" about which a certain Justice opined.

goodness bleepin' gracious - is nothing settled?

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gabe
on July 13, 2019 at 22:06:56 pm

Yet you fail to address the *limits* of how the DOI's principles should be addressed in COTUS. Given the *political* compromises that were made (indeed, by my reading were almost mandatory if the Union were to be established) over the issue of human bondage how are we to interpret Mr Madison's argument? Clearly, even Mr Madison acknowledge that the DOI could NOT be fully "inspirited" into COTUS. Admittedly, this was a rather pivotal issue with no readily available solution at the time, and yes, there were many who sought to limit the evil effects of this compromise via limiting future slave trade, etc BUT the fact remains that those very same men who Crafted COTUS, to include Mr Madison were willing to vitiate the most fundamental precept of the DOI in order to achieve a political settlement that would permit the creation of the new regime. (And NO, I am not one of those who holds this to be a permanent "mortal sin"; rather, I understand that POLITICS, properly understood has, and will continue, and indeed *ought* to temper the high minded rhetorical flourishes of the DOI.

In short, perhaps, it is more important to view the evidence of what the Crafters actually CRAFTED, via politics, than mere words in a political broadside such as the Federalist Papers (which I dearly love, BTW).
We can engage in a battle of "dueling commentaries" of Great Men should we wish. I prefer to *observe what these Great Men actually CRAFTED - and the COTUS which was signed by these men on 17 September 1787 DOES NOT fully embody the spirit of the DOI - nor was it the intention of Crafters to do so.

Were that the case, why then would these same men expect that citizens be virtuous, be restrained, be temperate RATHER than giving free and full expression to their tendencies toward licentiousness - which is what we now observe being provided with the imprimatur of SCOTUS as these Black Robed quasi-Legislators imbue COTUS with the free spirit of the DOI.

Your position leads us to where we now stand - or better yet, where we now sit awaiting the latest Declaration as understood by the Judicial.

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gabe
on July 13, 2019 at 22:28:34 pm

Thanks, Hans, for this reminder: "As to the Declaration being largely absent in the ratification debates, well this is simply not so, Pauline Maier’s claims notwithstanding. Have a look at Pennsylvania."

Ken

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Ken Masugi
on July 14, 2019 at 21:26:02 pm

Interesting discussion. I think that one way for the modern American attention span to understand the intention and source of authority of the Declaration of Independence is to re-imagine it as a Twitter thread:

InCongess
We are no longer part of Great Britain. King George is a dick.

Aloyalist
@InCongress. What gives you the right to defy the King?

InCongress
@Aloyalist. We think we can live better lives if we govern ourselves. But hey, you do you.

Aloyalist
@InCongress. Lol. The King's authority comes not from his subjects, but from God ! Geez, read a book!

InCongress
@Aloyalist. Really?' Cuz we think that there is more to life than being subjects of a King.

Aloyallist
@InCongress. OMG! Like what? Canoodling with the French? They put you you up to this, didn't they?

InCongress
@Aloyalist. No, dumbass. Like deciding for ourselves what is important to us and to follow our own individual nature. You know, the nature that God gave us?

Aloyalist
@InCongress. Yeah? Well nature is not all sunshine and rainbows. I give you morons five years before you come crawling back begging for a king! If the British army doesn't kick your @$s first!

InCongress
@Aloyalist. Oooooh, Keyboard tough guy! We'll be fine. Idiot.

Aloyalist
@InCongress. Jackasses.

Of course, the spirit of the Declaration sounded better in the original.

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z9z99
on July 14, 2019 at 21:49:24 pm

“Consent” means submission or subjugation. I reject consent in order to collaborate with interested fellow citizens for mutual, comprehensive safety and security in the USA. “Citizens” includes elected and appointed officials and the press, and if they are dissident, it is so by their choices.

Will attempts to support: The Declaration “secures” consent that is portrayed in the Constitution.

In the 1776 Declaration, formerly loyal colonial-British subjects terminated consent to British rule. France won their strategic battle against England at Yorktown, VA in 1781. A 1784 consequence was 13 free and independent states on the eastern seaboard of N. America.

The U.S. Constitution came in 1787 and its stated purpose is: Willing citizens collaborate for 5 public institutions---Union, Justice, Tranquility, defense, and Welfare---in order to secure responsible human liberty to the continuum of living citizens.

The U.S. preamble terminated consent to the Continental Congress, replacing the Confederation of States with a Union of States under their civic citizens (aware and willing collaborators under a people’s proposition, the U.S. preamble).

When the people’s representatives from 9 former British colonies ratified the preamble to the U.S. Constitution and the articles that followed, consent to be governed was obsoleted by 5 public institutions that encourage responsible human liberty. The articles that follow the U.S. preamble provide for amendment to justice when injustice is discovered.

With this message, it is time for We the People of the United States to emerge after 231 years’ obfuscation by “unchanging context”---originalism or preservation of colonial-English psychological-oppression of We the People of the United States---the civic citizens who collaborate for responsible human liberty.

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PHILLIP BEAVER
on July 14, 2019 at 21:52:28 pm

Dear Twitter user @InCongress,

Your account has been suspended for violation of our terms of service....

The Twitter Team

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z9z99
on July 15, 2019 at 13:00:55 pm

Z:

Good take - and speaking of versions of the DOI, the real question may be NOT IF the DOI infuses COTUS, etc BUT WHOSE VERSION of the DOI are we to infuse into COTUS?

Doubtless, The Wise Latin and Ruth B Ginsburg's version of the DOI varies noticeably from the DOI that Erler, Masugi and, as an example, I hold dear.
In fact< i would venture to say that even Mark Pulliam's version may be said to infuse COTUS as it probably recognizes that the DOI is not a license for, well, "license."

So what version shall we choose?
OMG, it is probably easier to make a choice at Baskin-Robbins given the never ending proliferation of both DOI'S AND COTUS to be found.

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gabe
on July 16, 2019 at 05:15:40 am

“Will’s argument that the “true meaning” of the Constitution must be found in the Declaration is both counter-intuitive and non-originalist. “

Here, George Will is spot on, for we can know through both Faith and reason, that the “true meaning of the Constitution, is found in The Declaration Of Independence”. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness; that to secure these Rights, Governments are instituted among Men, ...” (The Constitution)

The problem is that George Will does not know Who God Is, and thus, cannot fully understand the purpose of our unalienable Rights.

Libertarianism is not consistent with Christianity because Christ has Revealed Through His Life, His Passion, And His Death On The Cross, that to Love one another as Christ Has Loved us, is to desire Salvation for one’s beloved.

Destroying the life of a beloved son or daughter residing in their mother’s womb, and reordering man according to sexual desire/inclination/orientation, in order to justify sexual acts that regardless of the actors, are universally demeaning , like slavery, deny the inherent Dignity of the human person, who is first and foremost, a beloved son or daughter, which is unconstitutional.

Real Conservatives recognize that our unalienable Rights come from God, The purpose of which can only be, what God intended, because God Is The Author Of Love, Of Life, and of Marriage.

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Nancy
on July 16, 2019 at 15:18:42 pm

I was puzzled by the statement that the "fixed and immutable principles of 18th century morality" could be thought to forbid the legalization of abortion. Abortion was legal at common law and also sanctioned by the Catholic Church at the time of the founding, so for centuries prior to adoption of the Constitution it was entirely lawful (until the time of "quickening").

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John Donohue
on July 17, 2019 at 23:59:03 pm

The didache prohibits abortion. Christianity always did so since it’s beginning. When quickening was used they did not know there was a living soul at that time.
On another point, the DOI criticizes the Crown for allowing Catholics freedom of religion in Canada.

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James
on August 01, 2019 at 13:59:27 pm

We still alter or abolish parts of it, just not in writing...

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Mr. E
on August 01, 2019 at 15:17:35 pm

Im just some guh but it seems to me the declaration declared intents, reasons and principles, then the constitution instituted a government, the likes of which instantly started going down the path of why the declaration was drafted in thw first place. You might say the constitution is against the declaration not ensconced in it...

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Some guy
on August 01, 2019 at 15:39:17 pm

No doubt. And we're piling up our own list of grievances reflecting the disconnect between the original intent and modern day governance.

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Olly

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