We are told that judicial engagement will not lead to dueling natural rights jurists usurping republican government. But what rights do they see?
In a detailed historical review of Timothy Sandefur’s new book entitled The Conscience of the Constitution, Adam Tate raises the practice of federalism as a principled method that representatives used in the early republic for handling difficult issues. Rather than face political paralysis or endure efforts at national coercion via constitutional provisions regarding slavery or religious freedom, for example, Tate notes that the Founders looked to the states and their separate interests as the best solution. So Tate argues that there was no natural rights code of law with exact specifications nationally applied.
If we were such a republic, then why were natural rights not relied upon in the tough cases and appealed to with precision? If there was consensus on natural rights as the baseline, then surely it would have governed these disputes, rendering them noncontroversial. More plausible is that the natural law and natural rights were seen as an ultimate source of law, but what this meant in concrete application was not firmly agreed upon by the Framers. As a result, particular resolution of constitutional questions via a detailed code of natural rights wasn’t ventured. Sandefur argues otherwise and contends that “the principles of the Constitution’s political philosophy are not left up to the judges to invent, but are stated in the Declaration of Independence.” For the “Constitution’s text implicitly incorporates the classical liberal political philosophy of the Founders.”
One can hardly deny that natural rights arguments of a Lockean strain were a key part of that fateful period from 1760-1776. Founders and framers made such arguments as rhetorical weapons in representing their grievances against the British Empire and in the eventual movement for separation and independence. However, as Greg Weiner has noted, much more was at work in the minds of colonists justifying their separation from the Empire. Weiner alludes to Friedrich Gentz’s The Origins and Principles of the American Revolution, compared with the Origins and Principles of the French Revolution, translated by John Quincy Adams, who found that the American revolution was about law, specifically: “The American colonists revolted based on the deprivation of their rights as British subjects, which, in Burke’s language, were their “entailed inheritance,” the product of a long and, crucially, particular political tradition.”
We are too quick to forget in our intellectual climate which finds repose in theory and generalities that the Declaration of Independence is as much a “bill of grievances” against the Crown, as it is a work of abstract principle justifying separation from Britain. As Jim Stoner argues:
Suppose the Declaration had been written as it is usually read today. It would be only about a page in length, edited down to the first two paragraphs and then the last, where the actual declaration of independence is made. No one would deny that these paragraphs—especially the famous second one, with its elegantly simple account of the first principles of natural rights and just government—contain the most memorable phrases in the document, indeed precisely the phrases that have fired the imagination of generations of Americans and of reformers and revolutionaries around the globe.
But to stay in this theoretical spot is to be forgetful. Again, Stoner notes:
[T]he famous paragraphs of the Declaration are but a part of the whole. Looked at by an age enamored of political theory and ideology, they appear to be its most important passages; but at the center of the document is a list of grievances against the king and Parliament that make the case for independence there and then. These are, the Declaration says, “Facts . . . submitted to a candid World” to “prove” that the British are intent upon “the Establishment of an absolute Tyranny over these States.”
Theory does not a separation make, what is needed is law that gives valid reasons justifying outrage over its repeated breaches by the Crown and Parliament. On this point, Stoner notes that the grievances are general, dates are not provided, rather, we are treated to a list of unlawful acts set forth in the document. What gives? Surely we need some detailed proof? Stoner asserts:
But unlike the first principles of politics, the tyranny in these rather general facts—which never name names or dates or places—is not immediately self-evident. The outrage comes from a hidden premise: the English constitutional tradition, or at least the common law rights and liberties of that tradition, which the Americans claim as their rightful heritage.
So we might agree with Sandefur that in interpreting the Constitution we must be mindful of the Declaration, but in a manner altogether different from what he’s proposing. That is, the Constitution incorporates the Declaration’s grievances, but is silent on the natural rights methodology and conclusions of the Declaration. Might that be the more plausible rendering of the evidence. So we really aren’t a natural rights republic. Consider that “nearly every grievance detailed in the Declaration is addressed and prevented by a specific provision of the Constitution and the Bill of Rights. The bill of grievances, in other words, adds gravity and substance to the abstract principles formulated in the “self-evident truths,” and thus guards against arbitrary recourse to rebellion.”
I think the deeper truth underlying the claim that we are a republic of laws, emerging from the venerable common law tradition, is that the Declaration itself which, remarkably, sets this forth, was a product of legislative compromise. The genius of American institutions is liberty, but a liberty that is considered within public debate, taking the measure of interests and ideals. For this, we need the Declaration, but we might note how its Calvinist membership brokered compromise with Jefferson on noting in the document the help of a providential God in their struggle. So we have something beyond pure political philosophy in the document. We need also to consider as Willmoore Kendall urged “that way of life bequeathed to us by the Philadelphia Convention” i.e., the examples given in the Constitutional Convention, the state ratifying conventions, the anti-Federalists letters, the Federalist Papers, and the debate over the Bill of Rights of how a republic defines itself. This is the record of a Republic predicated on self-government and representative institutions, believing that it should and must be governed by “the deliberate sense of the community.”