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.

Feast of Corpus Christi

Procession in Sydney, Australia, 2015

According to the Roman Catholic church calendar, today is the Feast of Corpus Christi, the day on which the church celebrates the sacrament of the Eucharist. In Roman theology, this Eucharist, which to you and I looks like a wafer of bread, is the actual body of Christ, transformed, or in the terminology of the doctors of theology, transubstantiated, into that very thing, that substance.

It was perhaps this doctrine more than any other that precipitated the Reformation of the 16th century. The Lutherans rejected it, substituting for it the doctrine of consubstantiation, in which the body of Christ, while really present, is present alongside the actual bread, while not changing its substance. The Calvinists went farther, rejecting any notion of the physical presence of Christ’s body in or around the bread, instead arguing for its spiritual presence, by means of the work of the Holy Spirit. Finally, Zwinglians, Anabaptists, and kindred groups argued for the pure symbolic nature of the bread as Christ’s body, without any argument in favor of a real presence.

This controversy still determines divisions between the various “denominations” of the Christian church. But it should never have come to this. No, things should never have gotten this far – because they rest on a profound misconception regarding the character of the sacrament known variously as the Eucharist, Holy Supper, the Lord’s Supper, or Holy Communion. Indeed, the focus on the nature or substance of the bread as used in this sacrament completely misses the point as to what the sacrament is actually about.

Let me explain. And get straight to the point. Where in the Bible does the nature of the bread (and wine, which, while also part of this story, will be left out of the discussion to avoid redundancy) get discussed? The focus has been on Christ’s words of institution on the night He was betrayed: “And as they were eating, Jesus took bread, and blessed it, and brake it, and gave it to the disciples, and said, Take, eat; this is my body” (Matthew 26: 26). And the debate then centers on the meaning of the word “is.” Does “is” mean that the bread in some way actually becomes the body? Luther thought so. This was for him beyond question.

But what a diversion that is. With regard to this celebration, this Last Supper of the Lord, the composition of the bread is not the point at all.

When Paul quotes these words of Christ, he follows them up with the words, “Wherefore whosoever shall eat this bread, and drink this cup of the Lord, unworthily, shall be guilty of the body and blood of the Lord. But let a man examine himself, and so let him eat of that bread, and drink of that cup. For he that eateth and drinketh unworthily, eateth and drinketh damnation to himself, not discerning the Lord’s body” (1 Corinthians 11: 27–29).

What is Paul getting at?

First, participation in the Lord’s Supper needs to be worthy participation (“whosoever shall eat this bread… unworthily…”). Unworthy participation means participation without proper evaluation of its meaning. The Greek is derivative of anaxios, failure to attach the proper value to the sacrament, which is the Lord’s body.

To avoid this, secondly, the participant needs to “examine himself.” The Greek root is dokimázō, “test and approve,” thus inward examination to discern whether or not one actually is participating worthily or unworthily, whether or not one is attaching the proper value to the Lord’s body.

Thirdly, to participate unworthily is, in Paul’s words, “not discerning the Lord’s body.” Discern: from diakrinō, thorough investigation by means of which the matter at hand is brought to full awareness.

What this means is that the Lord’s Supper is no game, no passive habit, no mere tradition. It demands total awareness of what it is about, with severe sanctions attached for those who participate without the requisite self-investigation, proof, valuation of what is going on with it. “For he that eateth and drinketh unworthily, eateth and drinketh damnation to himself…. For this cause many are weak and sickly among you, and many sleep” (verses 29, 30). Physical, debilitating judgement is the consequence where this warning is not heeded. There are physical sanctions attached, just like there were in the Old Covenant. In this regard, nothing has changed.

And is the point in Paul’s admonitions the makeup of the elements? Was Paul saying that we needed to have the proper doctrine of the bread when we participate? The theologians would almost have us think so. But when we look at the context of this passage, we see something entirely different. Not discerning the Lord’s body has nothing to do with the wrong doctrine regarding the substance of the bread; it is the failure to realize that partaking of the bread makes the participant one body with all the other partakers of the bread. The body is not the bread, it is the partakers of the bread. Not discerning the body has to do, not with the elements, but with the participants.

What is it that upset Paul so much with the Corinthians’ version of Holy Supper? Some of the wealthier participants were setting up shop, having a grand old time with an extensive meal, while others, not so wealthy, not so upstanding, were being shunted off into a corner, forced to watch with hungry eyes. Paul is livid, and understandably so. “When ye come together therefore into one place, this is not to eat the Lord’s supper. For in eating every one taketh before other his own supper: and one is hungry, and another is drunken. What? have ye not houses to eat and to drink in? or despise ye the church of God, and shame them that have not?” (vv. 20–22).

The rich were despising the poor. They were dividing the body (v. 18). This is what it meant to eat and drink unworthily, to not discern the Lord’s body. It is that they did not discern that they were one body with those despised, or at any rate neglected, have-nots.

Therefore this is what it means not to discern the body. Luther said something similar about the church: “Denn wir, die zusammen kommen, machen und nehmen uns einen sonderlichen Raum und geben dem Haus nach dem Haufen einen Namen.”[1] Which is to say, we who come together form and take for ourselves a special space and give the house a name according to the people gathered there. The church is not the building; the church is the people gathered in the building. By the same token, the bread is not the body of Christ according to His literal flesh, it is His body according to His bride, those with whom He has become one flesh, for the church is both body and bride.[2] His body is His people. To divide His people, for one member of the body to diminish and denigrate another member, is to cause Him pain and to instigate His righteous anger.

Therefore, “my brethren, when ye come together to eat, tarry one for another” (v. 33), which is to say, wait for one another, give each other room, give each other time, make room for one another in your hearts. This is discerning the body: “But speaking the truth in love, … grow up into him in all things, which is the head, even Christ: From whom the whole body fitly joined together and compacted by that which every joint supplieth, according to the effectual working in the measure of every part, maketh increase of the body unto the edifying of itself in love” (Ephesians 4: 15–16). It is a joint venture in which every part needs every other part, every member needs every other member. That is what it means to discern the Lord’s body. And that is what the sacrament is all about.

Celebrate Corpus Christi? Fine, but don’t celebrate the elements, celebrate the members of the body the elements bring together in unity, “that the world may know that thou hast sent me, and hast loved them, as thou hast loved me” (John 17: 23).

[1] Geist aus Luther’s Schriften: oder Concordanz der Ansichten und Urtheile des grossen Reformators über die wichtigsten Gegenstände des Glaubens, der Wissenschaft und des Lebens, Volume 3 (Darmstadt: K. W. Leske, 1830), p. 47.

[2] “For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh. This is a great mystery: but I speak concerning Christ and the church “ (Ephesians 5: 31–32).

“Let us be glad and rejoice, and give honour to him: for the marriage of the Lamb is come, and his wife hath made herself ready. And to her was granted that she should be arrayed in fine linen, clean and white: for the fine linen is the righteousness of saints. And he saith unto me, Write, Blessed are they which are called unto the marriage supper of the Lamb” (Revelation 19: 7–9).

The Genealogy of Liberty Prolegomena to any Declaration of Independence

John sealing the Magna Carta by Frank Wood, 1925

Liberty has a pedigree. Our freedom is not “natural,” it is an acquired inheritance, a generational bequest. This and this alone is the basis for saying that we as citizens of nation X are entitled to the freedoms this nation X embodies, while citizens of nation Y are not. Freedom is a construct forged within the context of the rule of law, in a particular polity, over time.

When we speak of natural rights, as does the US Declaration of Independence, we show no understanding of this. We prove to be oblivious to the fact that liberty has a history. We show our complete ignorance of the provenance of rights.

We Westerners have freedoms embodied in the constitutions of our nations. Where did they come from? What is the origin of these Western nations and their constitutions?

To find out, we need to go back to the Dark Ages. It may come as a shock, but the original civilizational foundation and framework for Western civilization was laid then, in those “dark” times (dark not least because of the paucity of written records, due to the low level of literacy among laypeople; all written records were the product of monks). There was a Dark Age constitution; from this baseline, there was a further development of that constitution during later medieval times; and that development culminated during the early-modern period, say the 16th century – curiously enough, also the century of the Reformation. But the fruit of this development was hijacked by imposters claiming that they themselves came up with the idea of liberty. In fact, they stood on the shoulders of giants, whom with their little feet they continue to kick.

Let’s take a closer look. The social order of the Dark Ages was the product of the melding of two forms of social order, the Roman classical, and the Germanic tribal. The Roman classical form was built on slavery. The Germanic tribal form was built on kinship. The Dark Ages social order provided the framework for superseding the two. In so doing, it established a framework for eliminating slavery altogether from its midst – the first civilizational framework in history to do so – and for establishing a pluralistic order of free association.

The basis for this new civilizational framework was covenant. The Dark Ages social order did not eliminate inequality – far from it. Rather than eliminate it, it incorporated it into a new systematic, a covenantal one based on basic understandings of human nature, ultimately rooted in the theology of the West, Augustinianism.

The key concepts to this theology derive from the threefold “ground motive” of Christianity: creation/fall/redemption. Man was created free in a state of innocence before God, but fell from that state into a state of sin, which included, in principle and in practice, the loss of freedom. Augustine formulated it this way: “But by nature, as God first created us, no one is the slave either of man or of sin. This servitude is, however, penal, and is appointed by that law which enjoins the preservation of the natural order and forbids its disturbance; for if nothing had been done in violation of that law, there would have been nothing to restrain by penal servitude” (The City of God, Dods translation, p. 694). And baptism provided, in principle, the way out of this bondage. “The old [i.e. original] state of freedom… is gained in the form of redemption through baptism, the second birth which makes a man a Christian. It is significantly called Christian freedom, and is distinguished from the bondage of those who are not baptized” (Tellenbach, Church, State, and Christian Society, p. 40).

With the conversion of Clovis and the Franks to Roman Christianity – the Christianity of Augustine – came the advent of a baptized Western Europe. And baptism received its outworking in the establishment of a covenantal framework of social bonds regulating liberty and subjection. Within this new framework, there was no rigid distinction between bond and free: all were in bondage to sin, but all were also freed by salvation in Christ; and social bonds reflected the resultant degrees of freedom. There was no longer slave or free, but only a sliding scale of relative freedom and relative bondage. The various forms of feudal bond fleshed out this understanding.

The manor was the physical location with which these bonds were associated, and the economic hub of the social order. Lord and vassal established rulership over the manor, the vassal receiving rule over the manor, and enjoying its economic provision. He gained this in exchange for services to the lord. The rule of thumb was that a manor should support the fitting out of a knight and his accompanying warhorses and entourage.

The personnel of the manor were likewise engaged in terms of a feudal bond, this time between lord and serf. Even the lowest man on the feudal totem pole enjoyed some level of freedom, and over time this freedom expanded in give-and-take fashion.

That give-and-take was determined largely by economics. The manor was transformed by the return of economic growth during the medieval renaissance of the 12th century onward. Part of the reason that there had even been a Dark Ages was the collapse of the Roman economy in the West, with an accompanying  dearth of the fuel of the pre-modern economy, silver. In the 12th century, silver production and thus monetary circulation took flight, precipitating a boom which would last a couple of centuries, and which would likewise fuel the constitutional developments of the age.

This involved the transformation of the manor. The manor was transformed from relatively self-sufficient autarchy to the center of the production of an agricultural surplus. This in turn supplied the material basis for the rise of towns and cities.

Accompanying these economic changes came changes in status, in freedom. The lord/serf relationship was transformed, in the commutation of physical services to money services, into the lord/tenant relationship. The surplus population moved into the towns and cities, where individuals gained the status of citizen. “Stadluft macht frei” (city air makes free) became the order of the day.

Henry Sumner Maine described this transformation as the shift from status to contract. By this he meant the shift from varying statuses embodying levels of freedom and privilege, to a single common status, that of citizen, with the center of gravity in human relations shifting toward contractual relations between citizens.

John Rogers Commons talked of the shift from subjection to liberty as being from unreleasable to releasable debts. An unreleasable debt cannot be repaid, and so results in the permanent subjection of the debtor to the creditor: this is the situation of the slave or the serf. A releasable debt, on the other hand, can be repaid by fulfilling the terms of the contract: therefore, the debtor does not fall into the status of permanent subjection, but retains equal status with the creditor.

So then, in the age of subjection, status is the dependent variable, contract the independent variable; in the age of liberty, the relation is reversed: status becomes the independent variable, contract the dependent variable.

These are the theoretical underpinnings of the genealogy of liberty. The praxis was hashed out in an ever-increasing number of proclamations, charters of rights and liberties, and simple prescription, arduously attained over the centuries by subjects from masters, vassals from lords, estates from monarchs, asymptotically approaching the limit of the status/contract curve. Books such as Sources of Our Liberties chronicle the advance of chartered liberty through the centuries within the Anglo-American sphere, culminating in the US Constitution and Bill of Rights.

The striking thing about Sources of Our Liberties is the shift in emphasis it shows starting in 1774, away from chartered liberties – liberty as inheritance, within the Augustinian framework – and toward the law of nature and inalienable natural rights – liberty as man’s natural condition, as if no fall had ever occurred (may we call this Pelagian? If not, why not?).

England’s “unwritten” constitution was actually an accumulation of prescriptive (unchartered but presumed granted at some point in “time immemorial”) and chartered rights and liberties. The documentary evidence of it, from Magna Carta (the “Great Charter”) to Confirmatio Cartarum to the Bill of Rights of 1689, is there for all to see. This tradition of chartered liberty, of constitutionalism, was the result of centuries of labor in England, similar to the centuries of labor other Western nations put into the process, with varying results.

But what happens in 1774? John Adams drily and succinctly sums it up. During the first Continental Congress, sitting on the committee to draw up a statement of liberties, he reports:  “Whether we should recur to the law of nature, as well as to the British constitution, and our American charters and grants. Mr. Galloway and Mr. Duane were for excluding the law of nature. I was very strenuous for retaining and insisting on it, as a resource to which we might be driven by Parliament much sooner than we were aware” (The Works of John Adams, vol. 2, p. 374).

But in that case, Mr. Adams, it is no longer a question of inheritance, of laborious acquisition, against the Augustinian backdrop of original subjection, the product of amelioration in terms of a progress in virtue. No, it is now a question of default-mode natural rights, and wherever they do not obtain, an injustice has been done. And what they even are is the open-ended $64 question, the driving force of modern politics.

Nevertheless, in terms not of speculative philosophy but of fact and history, our true Declaration of Independence is nothing other than the fruit of the Gospel as it was carried to our forefathers by the monks and priests of the Roman church during that most eventful, yet misunderstood, period of our history, the Dark Ages. The purveyors of natural liberty have conveniently jettisoned that history. They have slandered it as the age of “Barbarism and Religion,” and, purloined inheritance in hand, have gone their merry way “proclaiming liberty throughout all the land.”

What was once an inheritance has now become a natural entitlement. Which, paradoxically enough, makes the attainment of true liberty, liberty under law, a will-o’-the-wisp that fades like the Cheshire Cat, leaving only a sardonic, wistful smile.