Marginal

On Santorum vs. Paul: Lincoln vs. Douglas?  In last night’s Jacksonville debate, Santorum again went out of his way to espouse natural law principles.  Asked how his faith might influence him as president, he immediately veered from the question to make the case for reading the Declaration of Independence as the heart of the Constitution.  He then accused President Obama of what amounts to legal positivism — of seeing the state as the source of our rights. Santorum:

Faith is a very, very important part of my life, but it’s a very, very important part of this country. The foundational documents of our country — everybody talks about the Constitution, very, very important. But the Constitution is the “how” of America. It’s the operator’s manual.

The “why” of America, who we are as a people, is in the Declaration of Independence, “We hold these truths to be self-evident that all men are created equal and endowed by their creator with certain unalienable rights.”

The Constitution is there to do one thing: protect God-given rights. That’s what makes America different than every other country in the world. No other country in the world has its rights — rights based in God-given rights, not government-given rights.

And so when you say, well, faith has nothing to do with it, faith has everything to do with it. If rights come…

(APPLAUSE)

If our president believes that rights come to us from the state, everything government gives you, it can take away. The role of the government is to protect rights that cannot be taken away.

And so the answer to that question is, I believe in faith and reason and approaching the problems of this country but understand where those rights come from, who we are as Americans and the foundational principles by which we have changed the world.

Notice the telltale references to both faith and reason, to the distinction between the Declaration as a statement of truths and the Constitution as a means of protecting those truths (Lincoln’s apples of gold in pictures of silver), and to the question over the ultimate origin of rights.  Pure natural law argument.

Of course, the purest form of legal positivism these days comes from the conservatives and not from Obama or other moderates.  The legal positivism of Bork, Rehnquist, and Scalia, among others — the refusal to see our rights as emanating from anything greater than a majority’s sufferance — is partly a reaction to what those judges and justices understand to be a groundless Living Constitution.  For the average conservative jurist, discovering the Declaration’s truths in the Constitution seems just as touchy-feely as Living Constitution’s shifting, generational understanding.

This is why I believe moderates and liberals are closer to the Founders than the conservatives.  “Verily I say unto you, that the publicans and the harlots go into the kingdom of God before you.”  At least the Living Constitution has as its central premise that the Constitution has a heart.  And if moderates and liberals want to stop ceding the Constitution and the Founders to the states-rights conservatives, they may wish to examine natural law, perhaps starting with John Locke and Abraham Lincoln.  After all, few of Rick Santorum’s political views inexorably follow from natural law.

Santorum vs. Paul: Lincoln vs. Douglas?

During last night’s CNN-sponsored Republican presidential debate in South Carolina, Newt Gingrich alluded longingly, as he often does, to the Lincoln-Douglas debates. “I’d be quite happy to have a three-hour, Lincoln-Douglas-style debate with Barack Obama. I’d let him use a teleprompter. I’ll just rely on knowledge. We’ll do fine.”

Gingrich chafes under the modern debate format’s time constraints – not the aggregate time constraints: last night’s two-hour debate wasn’t that much shorter than the ones Lincoln and Douglas agreed to – but the time each candidate has to lay out his position before the next one speaks.

Little I’ve heard from Gingrich, though, suggests that he wishes to debate anything like the fundamental issues Lincoln and Douglas debated on seven occasions across Illinois in 1858. He just wants the uninterrupted 30-, 60-, and 90-minute time blocks the debaters enjoyed back then. (Lincoln and Douglas didn’t use moderators, either, and Gingrich always reserves his greatest invective for whoever’s unlucky enough to moderate the debates he participates in.)

Oddly, though, in the final minutes of last night’s debate, two of the candidates began to address an issue central to Lincoln – Douglas: what active role does the Declaration of Independence play in interpreting the Constitution and defining our federalism?

All four candidates were defending their pro-life bona fides.  Two of them – Rick Santorum and Ron Paul – began to draw distinctions between their views on how the right to abortion should end.  Short as the exchange was, it sketched out Lincoln’s and Douglas’s different approaches to the South’s right to slavery.

Paul wants to return abortion to a pre-Roe vs. Wade condition.  That is, he sees abortion as an act of violence and groups it with other acts of violence, such as murder, that the states have traditionally regulated through criminal codes and common law.

Santorum, on the other hand, believes that abortion is a federal and not a state issue.  Looking on his web site this morning, I found his list of a number of bills he sponsored or supported as a United States Senator that limited, or would have limited, abortion rights.

As I understand him, Santorum seeks not to simply overturn Roe v. Wade, which would leave the states free again to choose between criminalizing abortion or not. He seeks to outlaw abortion on a federal level as inconsistent with the Constitution as informed by the Declaration of Independence.

Here’s the actual exchange from this morning’s Chicago Sun-Times transcript:

MR. SANTORUM: Congressman Paul has a National Right to Life voting record of 50 percent, which is pretty much what Harry Reid’s National Right to Life voting record is. So for — to go out and say that, you know, you’re someone who stands up for the right to life, you repeatedly vote against bills on a federal level to promote the right to life, and you say that this is an individual personal decision or state decision. Life should be protected, and you should have the willingness to stand up on a federal level and any level of government and protect what our — excuse me — what our declaration protects, which is the right of our Creator to life, and that is a federal issue, not a state issue. (Applause.)

MR. KING: Quickly, sir.

REP. PAUL: Well, just — just for the record, I wasn’t even thinking about you when I was giving my statement.

MR. SANTORUM: (Off mic.)

REP. PAUL: So you are overly sensitive. (Laughter, cheers, applause.)

But it — but it is true that we have a disagreement on how we approach it. I follow what my understanding is of the Constitution, and it — it does allow for the states to deal with difficult problems. As a matter of fact, it allows the states to deal with almost all the problems, if you look at it. It is not given — these powers aren’t given to the Congress.

I see abortion as a violent act. All other violence is handled by the states: murder, burglary, violence. That’s a state issue. (Cheers, applause.) So don’t try to say that I’m less pro-life because I want to be particular about the way we do it and allow the states the prerogative.

This is the solution. This is the solution, because if we would allow the states to write their laws, take away the jurisdiction by a majority vote in the Congress, you repeal Roe versus Wade overnight instead of waiting year after year to change the court system. (Cheers, applause.)

Two things to note in Santorum’s remarks.  First, he deliberately corrected himself when he started to describe an unborn child’s right to life as something our Constitution protects.  He settled instead on describing it as something our Declaration of Independence protects.  He therefore seems to stand with Lincoln, who saw the Declaration of Independence as the soul of the Constitution.  (Lincoln, of course, never addressed abortion, but Santorum’s approach seems to model Lincoln’s from a Constitutional standpoint.) Lincoln went so far as to say that the Constitution’s primary mission was to protect the self-evident truths in the Declaration.

Lincoln’s penchant for reading the Constitution as a mix of ideals and political compromises and for using the Declaration to distinguish between the two was the backbone of his position in the debates.  Slavery could not be extended to the territories because the Constitution’s compromise with slavery should be strictly construed. Lincoln, therefore, saw slavery’s existence as solely a federal issue.

Douglas saw slavery as a state issue.  His doctrine of popular sovereignty, which had been embedded into the Kansas-Nebraska Act of 1854, would permit each territory to decide whether to permit slavery within its borders. Commensurate with his position, Douglas did not read the Declaration has having any bearing on the slavery issue.

The second significant point from Santorum’s remarks is this: Santorum not only described abortion as a federal issue, but he also specifically stated that it was not a state issue.  I doubt the ramifications of that statement sunk deeply into the ears of the debate’s audience. Santorum wants to in some manner make abortion illegal on a federal and Constitutional level.  Apparently, under Santorum’s formulation, states would have as much ability to make abortion legal as they now have to make slavery legal under the Thirteenth Amendment. (And read Paul’s brief defense of a limited role of the federal government under our Constitution in his response to Santorum.  It’s almost precisely Douglas’s position concerning the federal government and slavery.)

If Santorum’s argument (as I understand it) advances, think how it may shape our view of federalism and state’s rights.  Would abortion rights advocates become our next generation of states rights advocates? Would the pro-life advocates split over the issue of federalism? (Santorum, interestingly, got “applause.” Paul got “cheers, applause.”)

I don’t think Roe v. Wade will survive another forty years. The way the right to abortion ends, though, is important to our federalism, and perhaps echoes of that larger, future debate may reach back to last night in South Carolina, as brief and as halting as the exchange about it was.