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.

The Locus of Church Unity

Denominationalism defines the modern church. By denominationalism is meant the social existence of the church as a congeries of groupings (congregations) invested by private law with a certain degree of collective or “moral” personality, grouped together voluntarily in associations of greater or lesser geographic extent, whereby these associations are separated the one from the other by statements of faith and church orders.

This is a situation we take for granted, not having known anything else. It is thus for the most part an unexamined state. Yet it involves far-reaching consequences.

What denominationalism has done is divide the church into mostly competing factions, in terms of differences in the detail of their confessions. Because of these differences, churches split into like-minded associations (denominations). These can be viewed as pillars – a sort of “vertical” segregation. And these denominations in the nature of the case are loose associations of effectively independent individual congregations. This is “horizontal” segregation. The upshot is congregationalism: denominationalism establishes congregationalism as the mode of existence of the modern church.

These two dimensions of ecclesiastical segregation have fractured the force of the church in society. The effect and influence of the church is restricted to that which these segregated congregations can muster. And that not being very much in the great scheme of things, the collective force of the church in society is little more than a scattershot of pinpricks, like an infantry battle line firing uncoordinated salvoes of pellets from bb guns.

So these congregations, conscious of the lack of influence outward, turn inward. And the church becomes a collection of pietistic cells of retreat safely ensconced behind the congregational walls, whereby “building up the body of Christ” (Eph. 4: 12) becomes programs of congregational expansion. The congregation is everything; the denomination exists, of course, but it is a means to the congregational end; consciousness of a collective body of Christ greater than congregations per se is obfuscated if not lost entirely. And social action is severely restricted by the awareness of how little this or that congregation can accomplish; and besides, there are charitable organizations that “take care of that kind of thing,” not to mention the welfare state’s vaunted “safety net.”

But this is not the whole story. Unity there will be, by hook or by crook. And the vehicle to achieve collective action on the part of churches, or at least church members, is political action. To some extent this compensates for the dispersion on the ecclesiastical front. It can be argued that this has been the method for American Christians since the breakup of the established churches in the various states making up the Union. It is part and parcel of the Enlightenment agenda, according to which religion divides while the generally human (the correlate of which is a universal natural religion[1]) unites. In this state of affairs, we do not have to agree on doctrine or dogma – a form of civil religion serves the purpose well enough to uphold the ethical claims of Christianity, enabling Christians of all stripes to cooperate with regard to temporalities while leaving to one side those pesky spiritualities.

Such an agenda seemed to serve the purpose well enough in the past, when the ethical systems of Christians and non-Christians lined up more or less the one with the other, but increasingly and distressingly, the divergence between the two has become painfully evident. The result has been the celebrated culture wars. But not to worry – political action could be harnessed for phase two of “unified Christianity” with the rise of the “Christian Right,” the Moral Majority, the Christian Coalition, and whatever other organized form it might take. The latest iteration is probably the Tea Party. While these efforts might not enjoy the support of every Christian – usually, the more educated if not more left-leaning believer rather looks askance at them, if not with outright abhorrence – they do harness a great deal of grass-roots, salt-of-the-earth, common-ordinary-everyday Christians to the cause, the kind of person that, if truth be told, made America great.

What has been the result? For one thing, because churchgoers have found their locus of unity in politics, they have become more adept at speaking the language of Locke and Rousseau than at speaking the language of Canaan. We talk a lot about our rights – freedom of expression, freedom of conscience, freedom of religion – and very little about God’s claims on society and mankind. And in the meantime, putting all our eggs into the political basket turns the church into a vehicle of politics and political agendas. When it doesn’t turn the preacher into a surrogate politician, it imports into the church the spirit of party, the spirit of interests, and the (surreptitious) willingness of leaders of these movements to acquiesce in a spirit of compromise on issues over which at bottom there can be no compromise, regarding which the Word of God and the law of God speak clearly and unequivocally, and woe betide the nation that sets that Word and that law aside.

But the political process so subverts our way of thinking that we begin to think that it must prevail over those eternal verities, that there can indeed be a round of horse-trading of absolute truths, that the alternative – a higher law above the political process – is too horrifying to contemplate, especially when it means giving up our notions of civil (least-common-denominator) religion, the gentleman’s agreement that no longer carries the force it once did.

But what is the alternative? Are Christians simply to renounce the political process, democratic institutions, the gentleman’s agreement to agree to disagree, and be satisfied with nothing less than a theocratic state along the lines of (mutatis mutandis!) an “Islamic Republic of Iran” or some such-like barbarity?

Perish the thought. In these discussions, one ought to keep in mind that it is Western Christian civilization that voluntarily introduced the institutions of modern democracy, and voluntarily yielded so much of its prerogative to the forces of secularism. To repeat, this was done voluntarily, albeit with a lack of knowledge. For it has opened the floodgates to forces of intolerance that should never have been given that opportunity. But that doesn’t mean that democracy cannot be recovered such that these abuses can be remedied.

Be that as it may, the political process is not the be all and end all of a polity. We have made it such. In so doing, we have subjected everything of absolute value to the horse-trading of a game of interests and the spirit of faction. We have to draw a line in the sand and call out to the political process, “thus far and no farther.”

In the past we have done this through the institutions of private law: property, contract, family, private association. But increasingly through the instrumentality of legislation, these bulwarks have been undercut when not overthrown by the seemingly invincible advance of a political agenda embracing and regulating every area of life.

Perhaps we need to start with the church, and try to reverse the fateful descent into denominationalism that has led, among other things, to the politicization of Christianity. But where to begin?

Actually, there is a book which addresses this very issue. Not in so many words, for it was written for another time and another ecclesiastical condition; but the author, in attempting to make sense of where the church in his country had gone off the tracks, and how she might get back on the right track, was so kind as to expound universal principles that might serve to restore to the church an understanding of who she is and what she is and what she should be about. And in the process, recover a notion and, slowly but surely, a reality of a unified church, a church that, as the Dutch expression concisely puts it, “makes a fist” and so brings to bear the claims of God on the polity and the nation.

The author’s name was Philippus Hoedemaker (pronounced WHO-duh-mah-ker; translated, it means “hatter”), and his book was entitled The Church and Modern Constitutional Law. Actually, the subject was broader than the title would indicate. It is the idea of the church per se, and in consequence, it draws inferences regarding her place in terms of law and constitution. But that is quite enough to provide a not-inconsequential shove in the right direction.

Hoedemaker’s purpose was to address the condition of the Dutch national church in 1904. What has that to do with us? Quite a bit, as it turns out. For when Hoedemaker put his finger on what ailed that church, it turns out that that ailment was denominationalism. In other words, despite the status of the official Dutch Reformed (known as the “Hervormde”) church as the established, national church, the church arrangement (since the restoration of the monarchy in 1815) was a form of denominationalism by which the church was splintered into individual congregations and kept from any functional cooperation or more general assembling. This was effected by establishing a board arrangement atop the church, a bureaucracy exercising control over the church in the interest of the government, which as it turned out, was nothing other than to curtail the church’s influence in society. This arrangement was anathema to Hoedemaker, and it precipitated his thorough examination of the church “according to divine right,” as he put it, whereby he unearthed the principles of the church so as to determine whether this board arrangement could even remotely be considered biblical (it couldn’t), and if not, what the biblical arrangement might well be. Hence, this exploration of the church according to divine law is an exploration of the biblical bases and principles of the church.

It would be going too far afield to unfold Hoedemaker’s arguments in all their range and depth. But to our point – the locus of unity – Hoedemaker’s argument is compelling. As if by a prophetic vision, he argued that the Reformed church needed to recover the power of association, not as private individuals forming private clubs, but as congregrations retaining their integrity and represented by means of their own office-holders at more extensive levels of assembly, so harnessing the power of individual congregations into unified wholes acting collectively as with one mind. For the church never was and never is simply the local congregation; she is the body of Christ in her collective entirety as well.

The effect on society at large of such an expressed unity would be enormous in and of itself. Or, to cite Hoedemaker’s analogy:

If we compare the confession of the [unified] church to a building placed in the middle of a park, and the legislator to a landscaper who has been called to lay out that park entirely independently, it speaks for itself that the location of the house, when the architect takes it into account, determines the location of garden paths and flower beds. Still, it cannot be said that the architect has lost his independence. He is only taking existing data into account.[2]

Indeed. Facts on the ground must be taken into account, and even the most blasé and pragmatic politician will be moved by them. It works for the homosexual movement, which exercises an influence belying the number of actual homosexuals; why shouldn’t it work for a church restored to her birthright and confident in her mission?

Given the historical background of the Dutch Reformed church, Hoedemaker’s ideal would have been to restore her Presbyterian form under the Three Formulae of Unity. A fine ideal for the Netherlands, but even then not to be reached without the consent of the congregations, and Hoedemaker realized that, given the range of doctrinal discrepancy then obtaining in the “Hervormde” church, such an ideal would be one to strive for over a period of years, and one not to be obtained by imposition. The example of the Scottish Presbyterians in the English Civil War is not one he would imitate.[3]

But are his recommendations only to be attained by pursuing the expansion of Presbyterianism? I think not. And in fact, church tradition offers an alternative approach: quite simply, that of conciliarism. As with the condition of the church in the 14th and 15th centuries, it is the struggle for the locus of unity that impels us to seek to reestablish that unity in the face of disintegration. Then, it was the failure of the papacy to unite the church; today, it is the failure of the churches themselves to attain any unity at all.

But what of the various councils of churches such that litter the ecclesiastical landscape today? One need only examine the agendas put forward by such councils to see that they function exactly the way Hoedemaker’s bête noir, the board arrangement, did: they simply attempt to harness churches to the fashionable political agenda of the day while suppressing the preaching of the Word in its purity. There is nothing of the gospel of Christ in them, and certainly nothing of the law of Christ; just the latest iteration of the religion of humanity on display, in the name of Christ.

No, we should have in mind something entirely different: 1) the unity we seek should be geographic unity; 2) the unity we seek should be comprehensive, including all churches confessing Christ, not just our own denomination; 3) the unity we seek should be grounded in the confession of faith shared by the church in all places and at all times, the truly ecumenical church; 4) in terms of doctrinal specifics, the unity we seek should have as its goal (as opposed to starting point) a broad Augustinian synthesis.

As Hoedemaker argues, we do not create the church, nor is she brought into being by us; she is already there, invisible; only she becomes ever more visible the more we give shape to her, the more we establish the offices, the ministry of Word and Sacrament, and the exercise of discipline in conformity thereby, at the congregational level; and broad assemblies of office-holders expressive of the body of Christ at all levels.

Would such Augustinian ecumenism do away with denominations per se? I do not see why that should be the case. Congregations can form part of greater unions in terms of doctrinal specifics. But that should not be the only form of unity. There is much more that the various church traditions share than that they differ on. Conciliar movements in the past have foundered on the quixotic quest to achieve doctrinal conformity. But that need not hinder a compound form of unity whereby the denomination forms one axis, but the parish another, the region or state or province another, the nation another. These councils should be a part of church life, manned by officers of the churches in representative fashion, and charged with arranging joint affairs, and making known the claims of God to society at large.

This includes the classic expression of prophetic judgment on the nation, in the tradition of the prophets of old; but it also should include a joint diaconal effort along the lines of Thomas Chalmers’ efforts in early 19th century Glasgow. A true diaconal work shared in by all the churches in a local community, a joint effort that has the potential of doing a lot more good for the brokenness of concrete families and neighborhoods than impersonal public welfare ever could. A regulated parish system – well, why not? What’s stopping us?

In these ways a territorial church system might be organized giving expression to the church as body of Christ. So might Hoedemaker’s vision become attainable for the modern church. And so might we become more faithful to our calling as members of one body.

[1] The defining characteristic of such a natural religion is that it deprecates “organized” religion, in other words, the church.

[2] p. 171.

[3] The section “Surgery, Hygiene, and Therapy” (pp. 134ff.) examines this question in detail.

New Book: Common Law & Natural Rights

I haven’t been posting much lately, and there’s a reason. I’ve been busy writing a new book. And it’s ready for the reading public. The title is Common Law & Natural Rights: The Question of Conservative Foundations, and it is an examination of natural rights as the foundation for conservatism, as opposed to the common law. It is the contention of the book that natural rights has served neither conservatism nor contemporary polities well. The reliance on natural rights and its daughter, the separation of powers, has led to overweening government, based on absolute democracy. The common law as a self-contained, independent bulwark of liberty is proposed as the alternative. For more information, follow this link.

Regarding the Stahl book on constitutional law, it is nearly finished. I hope to have it ready for publication within a month or two. Stay tuned.