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?