During this week’s Nevada senatorial debate, which I saw on C-SPAN, Sen. Harry Reid gestured to his breast pocket, claiming to carry a copy of the U.S. Constitution there. The late Sen. Robert Byrd used to do that, too. What are these senators asking us to understand about them?

And how about these Tea Party candidates who quote famous phrases from the Consitiution and other founding documents?  For her part, Mrs. Sharron Angle, Senator Reid’s opponent, referred to the Constitution and quoted a phrase from Lincoln’s Gettysburg Address a few times during the debate.  What did she mean by all that?

I mean, I get the politics of it, but what are they saying when they declare their adherence to the Constitution?

I believe Lincoln upheld his oath to preserve, protect, and defend the Constitution, but I doubt that he kept a copy of the Constitution in his jacket pocket (or even in his file cabinet of a hat). If he were around today to employ our brand of political theater, I think he might have produced a copy of the Declaration of Independence on the hustings instead of the Constitution. Lincoln thought that the Constitution, at its most noble level, was designed to preserve, protect, and defend the truths of the Declaration.

Lincoln’s understanding of how the Declaration and the Constitution operated together made the latter morally enforceable even in an era when its provisions enforced slavery. His approach amounted to a moderate constitutional philosophy that we’ve needed for some time.

Lincoln’s approach to slavery reflected this constitutional moderation. Lincoln was no abolitionist: he agreed with the abolitionists’ ultimate goal – the abolition of slavery – but he disagreed with their means – the overthrow of the Constitution that protected slavery. Lincoln believed that the Declaration’s truths were protected by the Constitution’s mean compromises, and he described the relationship between the Declaration’s truths and the Constitution’s compromises in a biblical metaphor, quoting this passage from Proverbs: “A word fitly spoken is like apples of gold in pictures of silver.” For Lincoln, the Declaration’s truths are the apples and the Constitution is the picture:

The assertion of that principle [“liberty for all”], 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.

One must preserve, protect, and defend the picture of silver – the Constitution – not for its own sake but for the golden apples’ sake. The South sought to keep the picture without the apples. The abolitionists sought to keep the apples without the picture. Lincoln’s moderation would preserve both the apples and the picture long enough to amend the picture to become a fuller expression of the apples.

Today’s “strict constructionist” and “original intent” jurists draw from the antebellum South’s approach and read the Declaration out of the Constitution. Without the Declaration to guide them, conservative justices often twist the Constitution as much as any “living constitution” liberal justice would. In his book The Tempting of America, for instance, Judge Robert Bork asserts that the Constitution never recognized a slaveholder’s right to own slaves. This contorted view is a product of Judge Bork’s confusion of the picture of silver for the apples of gold. Why not, with Lincoln, see the Constitution’s protection of slavery as “an anomaly, a necessary evil entailed upon the Constitution, but not flowing from – or consistent with – its genuine principles”? (Harry Jaffa’s words in “’Original Intentions’ of the Framers,” 10 University of Puget Sound L. Rev. 351, 364.)

If today’s liberal justices’ “living constitution” sometimes rewrites the Constitution’s provisions, at least it does so based on a perceived need for some truth or some set of values to animate the Constitution’s provisions. “There are no apples of gold here,” the liberal side of the bench says, in essence. “Slavery has made the Constitution, as written, without moral truth, so each generation must find its own values in the Constitution’s words. Each generation must paint its own apples in this picture of silver.”

But the conservative side of the bench is less honest and, in the long run, more destructive. “The picture of silver is the apples of gold. The apples exist only by virtue of being in the picture,” the conservatives say, in essence. Consider the following relativist statements made over the last forty years or so.

On abortion:

It just seems to me incompatible with democratic theory that it’s good and right for the state to do something that the majority of the people do not want done. Once you adopt democratic theory, it seems to me, you accept that proposition. If the people, for example, want abortion the state should permit abortion. If the people do not want it, the state should be able to prohibit it.1

On minority rights:

The whole theory of democracy…is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection.2

On the alternative to liberal justices’ “living constitution”:

If [a democratic] society adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards do indeed take on a generalized moral rightness or goodness. They assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someone’s idea of natural justice, but instead simply because they have been incorporated in a constitution by a people.3

On the source of moral values in a democratic society:

There is no way to decide these questions [placing moral positions at odds with one another] other than by reference to some system of moral or ethical principles about which people can and do disagree. Because we disagree, we put such issues to a vote and, where the Constitution does not speak, the majority morality prevails.4

The first statement sanctions abortion by virtue of a state’s majority’s support of it. The second statement sanctions any minority’s rights only by virtue of the majority’s determination that such rights should exist. The third statement asserts that any individual liberties found in the Constitution acquire “moral rightness or goodness” not from being a priori right or good but by virtue of their inclusion in that constitution. The final statement asserts that, because the United States cannot agree on what is moral, then, unless the Constitution addresses the point, the “majority morality prevails.”

These statements, I think, should make a social conservative cringe. Yet these writers are not known liberals. In fact, they are all conservative judges or justices. Justice Antonin Scalia penned the first two statements, former Chief Justice William Rehnquist the third, and Judge Robert Bork the fourth. The statements are not taken out of context, and they fairly represent the writers’ notions of constitutional law.

Strict constructionists treat the Constitution as if it were a statute. But the Constitution has a finite set of truths that emanate from it and assist us in understanding it. The conservative “strict construction” applies a kind of moral blindness to its constitutional adjudications. Lady Justice is blindfolded, but she is blind to prejudice and favoritism, not to constitutional truths. But for these conservatives and for most conservative justices today, truth is only a product of the constitution. The picture of silver creates the apples of gold; it doesn’t preserve or protect them.

Rehnquist and his fellow conservative justices are this generation’s version of legal positivists – theorists who believe that no law (other than, for the religious legal positivist, God’s Word) is higher than laws promulgated by government, whether that government is a king or a legislature. In “strictly construing” the Constitution, they leave out the moral truths that the founders wove into it. This strict construction also does not allow truth to distinguish between a constitutional clause based directly on a founding principle and one based on a compromise necessary to secure ratification.

By construing a moral document without the benefit of moral truth, conservative legal positivists contribute to the moral relativism they claim to abhor:

The tendency of contemporary Western societies to adopt legal positivism is perhaps linked to the widespread acceptance of relativism, which is grounded in a general skepticism that there is something like a universal “moral truth” that can be known. From this view, moral concepts are relative to cultures and even individuals. Indeed, cultural elites often believe that relativism is the most secure foundation for pluralistic and democratic values, since differing perspectives can coexist without seeking to impose their truths on others when everyone accepts that there is no truth to which society ought to confirm. Yet, the experience of totalitarianism in both its communist and National Socialist form in the twentieth century has led in some circles to a renewed appreciation of the need for some form of natural law to undergird positive law. When the Nuremberg trials convened, a problem immediately arose: the mass extermination of millions of human beings, of which the Nazi leaders were accused, was in fact legal according to the positive laws of Germany and its duly constituted legal authority.5

Indeed, Harry Jaffa, the conservative political theorist who wrote the seminal Crisis of the House Divided and founded the Claremont Institute, wonders if Rehnquist, in light of his legal philosophy, could see any “moral reason why any one set of laws should be adopted over any other, for example, the American Constitution over the constitution of the Third Reich.”6

The founders, though, believed in certain “immutable truths” – truths that needed no constitution or majority of justices to affirm their existence. The Declaration famously enumerates some of these truths.  Those truths gave the constitution its moral force. Those truths also gave the constitution its flexibility – a trait poorly mimicked by today’s “living constitution” doctrine but completely missing from the conservatives’ truth-starved, literal approach to the Constitution.

The Declaration’s apples of gold are its self-evident truths. To deny the possibility of self-evident truths is to adopt the essence of nihilism, whether that denial stems from a fundamentalist (John Calvin), historicist (John C. Calhoun, Alexander Stephens, the German National Socialists), or mechanistic (Thomas Hobbes) understanding of human nature. I agree with Edward J. Erler’s definition of nihilism as well as the connection he perceives between nihilism and tyranny:

The triumph of moral relativism grounded in nihilism will inevitably lead to tyranny. Nihilism is the belief that the metaphysical freedom of man is merely a delusion. . . . It is a very short step indeed from the denial of man’s metaphysical freedom to the denial of his moral and political freedom.7

I’m not sure Lincoln would even bother carrying around the Declaration today, since he called it a “merely revolutionary document” that itself carried “an abstract truth, applicable to all men at all times.”  That’s the heart of it: the self-evident truths.

So I’m not sure, either, what a politician means by carrying the Constitution close to his heart. I’d just like to know if his concept of the Constitution has a heart, and the original one at that.

 

Footnotes:

1Jaffa, Harry V. “The False Prophets of American Conservatism.” The Claremont Institute. The Claremont Institute, 12 Feb. 1998. Web. 09 Oct. 2010. <http://www.claremont.org/publications/pubid.670/pub_detail.asp>.

2Ibid.

3Jaffa, Harry V. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War. Lanham, MD: Rowman & Littlefield, 2000. Print.

4Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: Free, 1990. Print.

5Rosenthal, Alexander S. Crown Under Law: Richard Hooker, John Locke, and the Ascent of Modern Constitutionalism. Lanham, MD: Lexington, 2008. Print.

6Jaffa, New Birth, supra, at 88. Jaffa takes a long look at what stands behind Rehnquist’s constitutionalism. For Rehnquist, he says, “intrinsic worth as a concept has no foundation in reason. If safeguards of liberty have no such worth, then neither has liberty itself, or even life. In Rehnquist, we can observe that historical right has been transformed into unmitigated positivism or indeed into nihilism. He accounts for constitutional morality by saying that constitutional safeguards ‘take on a generalized moral rightness or goodness’ when they ‘assume a general social acceptance.’ Constitutional safeguards or laws that have in themselves no intrinsic worth, and therefore no moral goodness, ‘take on’ (whatever that means!) the aspect of morality by being accepted. But how can ‘acceptance’ transform what has no moral worth into what is morally worthy?”

7Erler, Edward in his introduction to Jaffa, Harry V. Storm Over the Constitution. Lanham, MD: Lexington, 1999. Print.

 

 

Posted October 16, 2010.