Deconstructing the Declaration Breaking down the mechanism of inalienable rights
(updated July 4th, 2019)
A meme making the rounds on Facebook (shared by the ever-provocative Dominic Foo) poses an interesting question: either “our rights come from God not government” or “Immigrants don’t have the same rights as Americans.”
It would seem that one or the other applies: if our rights come from God, then why do the citizens of one country see less or fewer of them than the citizens of another country? Are we supposed to believe that God endows one people with more rights than another, and that all government does is respect those rights? That would allow us to make choice #2. Or, if our rights come from God not government without respect of persons, hence choice #1, then that entails that we allow people to flee from one jurisdiction, where those rights are not respected or even recognized, to another jurisdiction which acknowledges these rights from God.
In other words, on this 242nd anniversary of the signing of the Declaration of Independence, we are once again faced with the conundrum the Declaration poses. For if it says anything clearly, it says that “all men are created equal.” So then, if we are to believe that its portentious phrases apply to all human beings equally, then indeed, immigration restrictions, among other things, stand in the way of their fulfillment. Just as in 1776, if those phrases had really been believed and taken literally, the slaves would have to have been freed immediately. But they weren’t.
The same thing is true regarding the restrictions on sexuality in favor of traditional marriage and the family. Say what you will about Anthony Kennedy, in his jurisprudence regarding homosexuality and marriage culminating in Obergefell v. Hodges, he was simply being faithful to these same portentious phrases.
For some time now, the jurisprudence has been catching up with the text of the Declaration. This explains the lack of push-back on the part of the political opposition. There is indeed opposition among the so-called “deplorables,” the grass roots, but this opposition is not receiving the representation one would expect it to. Not only electorally, but also in the institutions of public life, ranging from government to the schools, academia, the news and entertainment media, etc.
The reason is precisely the jurisprudence catching up with the text. Which is why such issues are characterized as inevitable. So to be in favor of gay marriage is to be “on the right side of history.” To be opposed is to be as retrograde as it is to be opposed to human rights generally. It is no good to refer to thousands of years of contradictory human history, to self-evident laws of nature, to the teaching of all religions everywhere, to the teaching of the Christian church, to which the majority of persons in the United States still professes to adhere, to the teaching of the Bible. None of that matters, because “history” is on the side of gay marriage.
On the face of it, stated as baldly as that, it seems astounding that this kind of argument could gain the ascendancy. Nevertheless, this decision is now “the law of the land.” And at this point, it would appear that it will be groups opposing this newly minted institution who will be fighting to survive. Because the entire machinery of federal, state, and local civil-rights legislation and policy, when the party in power favors it, will be brought to bear upon those recalcitrants. Caveat ecclesia.
What explains this inevitability? Quite simply, the natural rights paradigm that is enshrined in the Declaration, and which was placed at the heart of Western legal and political institutions beginning in the 17th century. That’s right: the document signed 241 years ago ratified the state of affairs that would eventually produce, e.g., same-sex marriage.
Of course, the Founders would be rolling in their graves if they had known that this would be the end-result of their work. Which would seem to be prima facie evidence against my thesis. “Balderdash!” they would exclaim. But a short explanation of the mechanics will elucidate my meaning and confirm the thesis.
Time and again, the justification for all of these jurisprudential “advances” is found in the 14th Amendment to the US Constitution. On the face of it, it seems odd that the rights-ore that the Court has mined from the Constitution, it has mined from this text. The language is standard Lockean phraseology: rights to life, liberty, and property, along with a right to due process of law in adjudicating those rights; and that these rights accrue to every American citizen, either naturalized or born on US soil. How is it that rights of such divergent import (e.g., privacy justifying a right to abortion, same-sex marriage, non-citizen welfare benefits), having nothing to do with the ones here enumerated, have nevertheless been teased out of this?
It is because an enumeration of rights presupposes a mechanism of rights from which the enumerated rights have been derived; it is the mechanism which matters, standing as it does, over and above any listed enumeration and any law which might presume to contradict it. And this is what generation after generation of Supreme Court justices has divined.
What is this mechanism? The mechanism of subjective right, not in its proper place as a subordinate component of the legal order, but elevated to the status of sovereignty: the individual will is supreme, sovereign; it shapes and determines its environment according to its wishes, for its ends; and it is entitled to these fruits of its will. Entitlement, rather than virtue, becomes the point of the exercise. This becomes the ultimate source of law. The proper relationship of law and rights, expressed in the primacy of objective over subjective right, so laboriously elaborated in the centuries of Christian-Roman jurisprudence, was reversed in the 17th century, in order to supersede the requirement of appeal to the law of God. Instead, the appeal is made to a common humanity. This enabled our stalwart forefathers to supersede religious conflict, but it also gave birth to the jurisprudence which in straight-line trajectory has brought us to the point we are at today, and is poised to take us far beyond. At least, until the supporting framework – a functioning social order – collapses. After all, only so much of this subjectivism can be borne.
We all, wittingly or unwittingly, think in terms of this mechanism. The only difference between conservatives and progressives is the use to which they wish to put it. Historically, classical liberals put it at the service of property rights; nowadays, progressive liberals put it at the service of the pursuit of happiness. But at the end of the day, we are all liberals – we all believe in this project, the primacy of the sovereign individual. Which is why classical liberals continuously get their clocks cleaned by progressive liberals: the inner logic of the mechanism favors progressivism.
Jefferson’s formulation already lifts the veil on this aspect of the mechanism: instead of the Lockean triad of life, liberty, and property, he put forward life, liberty, and the pursuit of happiness – this latter being an utterly unjurisprudential goal because amenable to a range of interpretations. Nevertheless, quite understandable and even necessitated in terms of the mechanism – how could it remain restricted to mere property? The final paragraph of the majority’s opinion justifying its decision in Obergefell v. Hodges reads as a further elaboration of this pursuit of happiness, a paean to the Jeffersonian platitude, notwithstanding the dissenting opinion by Judge Scalia that it sounded more like “the mystical aphorisms of the fortune cookie.”
Fortune cookies tell the future, and this jurisprudence is rife with predictive capacity. We are headed towards a world not only in which the family as traditionally construed is doomed, but also in which the church is doomed. For the teaching of the church with regard to homosexuality is now ipso facto discrimination, soon to be classified as hate speech. Canada has already started implementing this reality, as has the State of California.
But there is much more in store for our country and our world. Nationhood itself is being obliterated before our very eyes, and by the same mechanism. What else could possibly be the rationale behind the importation of entire populations of underclass citizens of foreign countries (e.g., 25% of the Mexican population)? It is more than just “cheap labor” (that panacea of our latest iteration of corporate capitalist exploiters), for with the wonders of modern trade deals, that labor can be accessed just as easily and at just as permanently low wages in their countries of origin. No, it wasn’t enough that a demographic ticking time bomb is set to go off as the baby-boom generation retires and transitions into a giant mass of non-working dependents; no, we need to import millions more of low-wage, unskilled workers better fitted to serve as a voting bloc for entitlements, forming yet another mass of insufficiently productive dependents. Just how many entitlements can our system bear? We will soon find out.
We have our rights mechanism to thank for this, because the rationale for these kinds of otherwise irrational policy choices lies precisely in the putative entitlement perceived to accrue to each individual person regardless of race, religion, sexual orientation, or whatever other criterion strikes the fancy. This entitlement is what government can guarantee, what gives it its raison d’être, until of course it runs out of the wherewithal to furnish the entitled with what they are entitled to according to the latest bulletin of abruptly, blindingly, obvious self-evident, ungainsayable, inalienable rights.
This is what has happened with one group who have been promised so much in terms of entitlement – the African American population. They have been promised everything, and how much do they have to show for it? But no worry, any blame can be attached squarely to, well, Republicans, or the rich, or white people generally, or the police. Let it never be made known that their champions in the public square, the Democratic party, are the same ones who are allowing the importation of mass quantities of cheap labor competing precisely for the same jobs in the same labor market as many African Americans do, making it even more difficult for said African Americans to break out of the spiral of poverty and dependency. If they knew it was the Democratic party and its policy of open borders that ensured an unemployment rate for black youths far in excess of other ethnicities, would they care? Who knows? And if they knew that all the fomenting of racial discord and antagonism that has taken place in recent years was done precisely to cover up for this other policy, to divert attention from it, so as to keep the voting coalition afloat – would they care? Who knows? After all, the mechanism has us all in its thrall.
What we do know is that America as we know it is on life support. Nationhood itself is on life support. The end game for the people behind these developments is the drastic curtailment of national sovereignty in favor of world government and universal jurisdiction, the better to implement universal entitlement. America – the world’s last superpower – stands in the way of this.
It also entails the right to be free from preaching about sin. Here, it directly confronts the church. Stalin once asked derisively, “The Pope! How many divisions has he got?” Our contemporary politicians and academics and members of the power elite ask themselves a similar question. “Christians! How many votes have they got? How many teachers in the public schools? How many professors? How many judges? How many CEOs? How many journalists? How many media moguls?”
The trajectory should by now be clear, and it applies just as well to the question of immigration. The forces for open borders, which thus oppose restrictions on immigration, especially on the most disadvantaged, may seem now to be in the minority, but in terms of the inner logic of the mechanism enunciated in the Declaration of Independence and further developed in the 14th amendment and subsequent court decisions, they have “history” on their side. Unless and until the mechanism itself is combated and defeated in the halls of jurisprudence and the pillared shrines of justice, we can already project where this too will end. After all, by now we’ve seen this movie.