Thursday, July 29, 2021

The American Regime and Its Moral Ground

Most readers are probably familiar with the conservative position that the Declaration of Independence--with its recognition and enunciation of American first principles--should be treated as equally foundational to our constitutional order as the Constitution itself. That argument, reasonable as it is, is wormwood to progs for obvious reasons--as obvious as the Declaration's most famous passage: 

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, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Self-evident truths, a Creator, unalienable rights, limited government founded on principles rather than the opinion of prog experts--Yikes! It would be the end of civilization as ... Progs want us to know it. What would come next--open and fair elections?

Hadley Arkes, retired professor of jurisprudence, has a thoughtful article today that amounts to a meditation on these issues. It's well worth your time to read it:

The American Regime and Its Moral Ground

When the founders took up the task of framing a new Constitution, they had to draw upon those principles of law and moral truths that were there—as they had to be—before the Constitution.

The article begins with a simple observation, which Arkes brings out by contrasting Obama with Abraham Lincoln. The observation is simply that the United States is not founded on the US Constitution. The United States existed as a republic before the Constitution came into existence. The Constitution was ratified in order to constitute the Union of sovereign states that was the nation into a "more perfect union". A more perfect Union--the Constitution didn't actually establish that Union. Moreover, the Constitution rests on foundational principles that also--and very obviously--pre-exist the Constitution.

Thus, for Lincoln, the task of formulating the Constitution involved establishing forms of government that would be in accord with those foundational principles that already existed. As Arkes puts it so well:

The Constitution was made for the Union, not the Union for the Constitution. When the founders took up the task of framing a new Constitution, they had to draw upon those principles of law and moral truths that were there—as they had to be—before the Constitution. If those principles were not there, to tell us of the forms of government that were better or worse, how would we know of just what institutions claimed a rightful authority to put in place those “positive laws” that we were obliged to obey? And over time, jurists found it necessary to appeal back to those principles that were there before the Constitution, in order to apply the Constitution sensibly to the cases coming before them. John Quincy Adams would argue that the “right to petition the government” was simply implicit in the logic of a free government: it would be there even it hadn’t been set down in the First Amendment. By the same reasoning, it would be there even if there were no First Amendment; it would be there even if there were no Constitution.

Arkes also appeals to the views of Alexander Hamilton in this regard:

Alexander Hamilton went to the root in explaining that point when he wrote about those “first principles, or primary truths on which all subsequent reasonings must depend.” They contained an “internal evidence which, antecedent to all reflection and combination command the assent of the mind.” They were grasped per se nota, as true in themselves, [actually, 'self-evident'] as we grasp the “law of contradiction”: that two contradictory propositions both cannot be true. [I smiled when I read that, as I translated a book that deals precisely with the notion of self evident principles.]

Arkes then proceeds to discuss various issues in US history and governance that proceed from this recognition. Two issues loom large: the incompatibility of Slavery with the foundational principles of our republic, and the recurring conflicts over the need for a strong Executive power. The discussion is enlightening--I highly recommend it--but Arkes' overall point is that the laws by which our republic is administered take their inner coherence and authority not so much from the framework of the Constitution itself (although that, too, plays a role) but most essentially from the foundational principles that preceded the Constitution and which gave birth to the Constitution.

My point here is this. What happens when the people of a country no longer agree as to those first principles? When differing "demographics" (as we now say) no longer agree as to what truths are self-evident? What will hold the country together, and how long can that last?


  1. When differing "demographics" (as we now say) no longer agree as to what truths are self-evident? What will hold the country together, and how long can that last?

    I think recent history of Yugoslavia might be relevant here.

    1. as a frequent "visitor" downrange to the Former Yugoslavia some 25 years ago, this is not a pretty picture (and I've got plenty of those that I took back in the day, sigh, but I digress). That being said, I keep hoping we are approaching peak insanity in this country, but alas, I see no end in sight...

    2. I also spent time in Yugoslavia in the years leading up to war. The most amazing and striking thing to me during that time, in talking with the people there, was the absolute lack of trust and the suspicion that existed not only between Serbs, Croats, Bosnians, and Slovenes, but between people in towns 5 kilos down the road from one another! Talk about a fragmented society. No wonder "Balkanization" became a word. Serb nationalism didn't help, but the foundation was already there for things to blow up.

      That is what is scary about the analogy to me. We have forces today in the U.S. trying to drive wedges and suspicions between us by any means possible, forces which include our own federal government! In Yugoslavia the feds (essentially the Serbs) tried to maintain power by force, putting a bandage over the fractures of trust. Here the feds are trying to augment their power by fragmenting our society. What a country we have!

  2. Who remembers the show "Revolution?" The premise: Fifteen years after a permanent global blackout, a group of revolutionaries seeks to drive out an occupying force posing as the United States Government. Hmm, seems to me that we have a whole lot of poseurs in gov't now.

  3. For individuals, debit... That's what's current holding us together. As long as you can keep people owning money and fearing reposition of their property then we'll keep keeping on.

    For the states it's more complicated...

    They're largely beholden to the 2 party system.

    They're addicted to federal dollars aka funny money.

    There is also the debit factor depending the states involved. Trouble is if you remove the free funny money and all are insolvent.

    Like our war of independence and then civil war, it really boils down to dollars.

  4. What will hold the country together, and how long can that last?
    Not much, and not long, unless folks like Bill Barr & Mitch allow/ push for the housecleaning that they stopped from happening, after Horowitz's rept. made brutally obvious that said housecleaning was vital.
    Only then will moderate libs face the music, that any
    strong Executive power must be accountable to the electorate, lest it become akin to the powers of Dzerzhinsky, Himmler, and Beria.

  5. These ruminations on the Declaration are just a repeat of the second founding nonsense promoted by Harry Jaffa. The theory is that the real founding was in the Declaration, but that up until 1860 we really didn't have the equality that the Declaration promised, so it was Lincoln's war against the South that finally fulfilled the promise of the Declaration by destroying slavery.

    Jaffa promoted the idea that the constitution bound all the states together legally, and that the south broke the lawful agreement by trying to succeed, and therefore that Lincoln's war was the second founding that secured the permanent and eternal union.

    Under this theory, the US must exist until the end of time because signing on to the constitution makes it so. What we are finally realizing is that Lincoln’s war created a state of permanent dis-union under federal control. Look at the race map of any city in America. Every city in America is a segregated city.
    All of these ruminations about fulfilling the Declaration and living up to the constitution are excuses for federal power, and we can all see what that has given us. This is civic nationalism writ large – the idea that America is a nation of ideas, and that anyone who agrees with the ideas is just as much as citizen as anyone else. That’s nonsense.
    A nation is not a collection of ideas written on a piece of paper, and the founders knew this. A nation is a collection of people. When you change the people, you change the nation.
    Another 200,000 invaders crossed the border last month. For them, the Declaration means free welfare…..

    1. I have no idea what Arkes' ideas on an "eternal union" might be. However, that doesn't make his views on the relevance of the Declaration to an understanding of the Constitution nonsense. As for "changing the people", I directly raise that view--not on racial or ethnic grounds, however, but on cultural grounds.

    2. Lincoln’s War on the South?

      Might as well say Republican war against Democrats.

      To frame the Civil War in this manner is truly to denigrate the history of our country first as a confederacy and then as a republic.

      Let me ask you this, ya cool with California, Washington, Illinois, Virginia, and New York seceding and creating one or multiple other nations due to politics?

      What about federal property? They get to keep it?

      Camp Pendleton? Miramar (Top Gun fighter school)? 32nd Street (Navy base)?
      MCRD San Diego (Marine boot camp)? Bremerton? Point Loma (sub base)? Coronado (SEAL team base)? Quantico (FBI)?

      All federal buildings, including court?

      Who owned Fort Sumter? Yeah, South Carolina gave them to the US federal government. Who was trying to supply it? Who was blockading it?

      What if the District of Columbia decides to secede?

      The issues were just as complex then. What made the Democratic South secede? What was the impetus for that decision? States rights? States rights to do what? Anything? Everything?

      Why would an election of a US president cause an immediate reaction for Southern states to secede?

      What’s ironic about this is that the first state to secede, South Carolina, based it’s reasoning on the Declaration of Independence, quoting it, even.

      So, maybe Jaffa was onto something.

  6. A cursory reading of Ernest Gellner suggests that a nation can only exist with: 1) a literacy in a common language, 2) a common culture, and, at least initially, 3) closed borders.

    Quoting Gellner: "Nationalism is primarily a political principle, which holds that the political and national unit should be congruent.

    Nationalism as a sentiment, or as a movement, can best be defined in terms of this principle. Nationalist sentiment is the feeling of anger aroused by the violation of the principle, or the feeling of satisfaction aroused by its fulfillment. A nationalist movement is one actuated by a sentiment of this kind."

    He is not passing judgment but instead observing what it takes to develop and maintain a nation, and why some of its citizens might object to an onslaught of foreigners who don't share those national traits.