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.