If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it.
Thank you, Mr. Lincoln, for once again telling us how to go about our business, and happy birthday! So far as I can remember, this is my first keynote speech. It may however be better remembered for a sour note than a keynote. But then, so was Lincoln’s house divided speech.1 In it, Lincoln posed the stark alternatives—almost no one wanted to hear—of the nation becoming all slave or all free. Douglas’s popular sovereignty seemed to offer a painless way out of the territorial crisis, by having the people in each of the territories—rather than the Congress—decide the slavery question in that territory. Douglas had recently (in the winter and spring of 1857-58) led the Republicans to victory over the pro-slavery forces of Lecompton (and Buchanan) in the Congress, and the freesoilers were winning the battle on the ground in Kansas.
So why insist, as Lincoln did, that winning the vote over slavery in the territories was not enough, that it had to be accompanied by national legislation excluding slavery from the territories? It was this moral condemnation, with its promise of the “ultimate extinction” of slavery in the slave states themselves that the South could not accept, and that made secession and war inevitable. That Douglas represented a compromise position was exceedingly tempting to the eastern leadership of the Republican Party in 1858, and would almost certainly have been accepted, had not Abraham Lincoln stood in the way.
While the crisis of today does not have the immediacy of the crisis over slavery, its underlying character is the same. It is commonplace today to compare the issue of abortion to that of slavery, and especially to compare Roe v. Wade to Dred Scott. And, indeed, the parallels are many and striking. More profound than the details of these comparisons, is the one cause underlying the many resemblances. When Douglas declared that he didn’t care whether slavery was voted up or voted down, that he cared only for the right of the people to decide, he gave expression to a concept of democracy that identified majority rule with indifference to the morality of the outcome of majority rule.
Such moral relativism dominates political thought in our time far more profoundly than when Douglas and Lincoln had their debates. And this moral relativism, now even more than then, takes the form of a rejection of the principles of the Declaration of Independence. This is not because it is the Declaration alone that embodies moral realism and moral rationalism. Indeed, the principles of the Declaration are expressed in many other places in the Revolution and in the Founding generally. The “laws of nature and of nature’s God” in the Declaration represent, however, a distillation of the wisdom of a tradition of more than two thousand years.
They—and the American Founding generally—represent the culmination of the attempt by Socrates, described by Cicero, to bring philosophy down from the heavens. They also represent the agreement of reason and revelation—of Athens and Jerusalem—on the moral ground of human government.
At this point, let us note that what Leo Strauss called the crisis of the West has deepened greatly since the end of the Cold War. The struggle against Nazis and Communists produced alliances within American politics that did not need to plumb the depths of conviction to justify common action. In the last half century, the necessity to fight communism abroad and socialism at home was sufficient to bind together the various and discordant elements that made up what has been called “conservatism.” Those battles having been substantially (although not permanently) won, the issues that divide conservatives have now taken precedence over the expediency of their alliance.
The end of the Cold War has also brought an end to the remission of the disease of moral relativism that is corroding the life of western civilization. It would certainly seem that the salvation of the West must come, if it is to come, from the United States. The salvation of the United States, if it is to come, must come from the Republican Party. And the salvation of the Republican Party, if it is to come, must come from the conservative movement within it. And the salvation of the conservative movement, if it is to come, must come from the renewal and reaffirmation of the principles of the American Founding, embodied above all in the Declaration of Independence, such a reaffirmation as happened in the events that led to the election of Abraham Lincoln.
If such a renewal is to come, however, it must be by the rejection of the ideas that have dominated American conservatism in the last half century. This call for a renewal of our Founding principles has recently been made by an unusual authority, who has written the following:
The United States carries a weighty and far reaching responsibility, not only for the well being of its own people, but for the development and destiny of people throughout the world…. The Founding Fathers of the United States asserted their claim to freedom and independence on the basis of certain “self-evident” truths about the human person: truths which could be discerned in human nature, built into it by “nature’s God.”
Thus, they meant to bring into being, not just an independent territory, but a great experiment in what George Washington called “ordered liberty:” an experiment in which men and women would enjoy equality of rights and opportunities in the pursuit of happiness and in service to the common good.
Reading the founding documents of the United States, one has to be impressed by the concept of freedom they enshrine: a freedom designed to enable people to fulfill their duties and responsibilities toward the family and toward the common good of the community. Their authors clearly understood that there could be no happiness without respect and support for the natural groupings through which people exist, develop, and seek the higher purposes of life in concert with others.
The American democratic experiment has been successful in many ways. Millions of people around the world look to the United States as a model, in their search for freedom, dignity, and prosperity. But the continuing success of American democracy depends on the degree to which each new generation, native born and immigrant, makes its own the moral truths on which the Founding Fathers staked the future of your Republic.
Their commitment to build a free society with liberty and justice for all must be constantly renewed if the United States is to fulfill the destiny to which the Founders pledged their “lives…fortunes…and sacred honor.”
The speaker concluded with a prayer, a prayer that our country
will experience a new birth of freedom, freedom grounded in truth and ordered to goodness….
The speaker was Pope John Paul II, welcoming the new United States Ambassador to the Holy See, Lindy Boggs. It would be interesting to know if Ambassador Boggs understood what the Pope was saying.
There are many things that are noteworthy in this remarkable statement. In its main character it embodies doctrines that have been featured in my writings over the last 40 years. These have either been ignored or denounced, by the established representatives of conservative thought. For John Paul, like Jefferson and Lincoln, the rights mentioned in the Declaration of Independence, being rights with which we are endowed by our Creator, are not to be understood blindly to emancipate the passions, but rather to direct them towards the ends approved by that same Creator, ends which are in the service of the common good no less than that of private pleasures.
Contrary to our “paleoconservatives,” the truths of the Founding do not depend solely upon tradition or divine revelation, but are “discerned in human nature” by human reason grounded in “self-evident truths.”
It is also quite remarkable that John Paul does not speak here of traditional values, family values, or any other kind of values, which by definition are subjective. In the accents of Abraham Lincoln, he calls for renewal in each new generation of the “moral truths” (not values) upon which the nation was founded. We should take to heart today, on Lincoln’s birthday, John Paul’s call for “a new birth of freedom.”
We are obliged to recognize that the greatest obstacles to the moral renewal called for by the Pope may be found in the elites—conservative no less than liberal—who dominate our public life. Consider the resemblance to the ”popular sovereignty” of Stephen A. Douglas in these remarks2 of Mr. Justice Scalia.
It just seems to me incompatible with democratic theory that it’s good and right for the state to do something that the majority of the people do not want done. Once you adopt democratic theory, it seems to me, you accept that proposition. If the people, for example, want abortion the state should permit abortion. If the people do not want it, the state should be able to prohibit it.
The whole theory of democracy…is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection.
[Y]ou either agree with democratic theory or you do not. But you cannot have democratic theory and then say, but what about the minority? The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.
Justice Scalia says that if the people want abortion, the law should permit it. By the same reasoning, if the people want slavery, or any other form of plunder, there is no principled ground to oppose them.3
In the course of the joint debates, Douglas said,
We in Illinois…tried slavery, kept it up for twelve years, and finding that it was not profitable we abolished it for that reason.
To this Lincoln replied,
[Judge Douglas] says he “don’t care” whether [slavery] is voted up or voted down in the Territories…. Any man can say that who does not see anything wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he don’t care whether a wrong is voted up or voted down.
For Lincoln as for Jefferson—and, I need hardly add, for Pope John Paul—the great principles of right and wrong must govern the people, for the people to be able to govern themselves. No majority, however great, can authorize what is intrinsically immoral. According to George Washington, no nation can prosper that “disregards the eternal rules of order and right which Heaven itself has ordained.” These rules bind the majority no less than the minority.
Someone may object that Scalia, in common with other conservative jurists, is merely objecting to “unelected judges” usurping legislative powers. Of course, the usurpation of authority is always wrong. However, that the judges are unelected has nothing to do with their alleged usurpations. They are no less unelected when they decide rightly as when they decide wrongly. The manner of their appointment, and their tenure, is provided by the Constitution, and is authorized by the rights with which the people have been endowed by their Creator.
The independence of the judiciary was believed by those who framed and those who ratified the Constitution to be in the service of the rule of law. No one in 1787 believed that majority rule was the source of constitutional rights. They understood, as Scalia does not, that the prior recognition of the equal rights of all human persons is a necessary condition for the legitimacy of majority rule.
In his essay on “Sovereignty” James Madison made clear that unanimous consent—that is, unanimous agreement as to the rights of minorities—underlies and logically precedes majority rule. This follows from the conviction, recognized by the Pope, but not by Justice Scalia, that the rights with which we are endowed by our Creator are the basis of the political process, and are not negotiable within the political process. In 1786, Madison wrote to Monroe, denouncing the very idea of uncontrolled majority rule.
There is no maxim in my opinion which is more liable to be misapplied, and which therefore needs elucidation, than the current one that the interest of the majority is the political standard of right and wrong. Taking the word “interest” as synonymous with “ultimate happiness,” in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true.
But taking it in its popular sense, as referring to the immediate augmentation of property and wealth, nothing can be more false. In the latter sense it would be in the interest of the majority in every community to despoil and enslave the minority of individuals…. In fact, it is only establishing, under another name and a more specious form, force as a measure of right….
What is most striking here is Madison’s absolute opposition to Scalia’s opinion on the ethics of majority rule. Madison, it is true, distinguishes the popular or vulgar from the philosophic understanding of what constitutes the “interest” of the majority. This distinction, too, is unrecognized by Scalia. For Madison, the despotism of the majority is not less despotism because it is by the majority.
Madison’s condemnation of majority rule is virtually identical with Aristotle’s in the Third Book of the Politics. There, Aristotle denounces the very idea that the poor, by the mere force of numbers, may take away the property of the rich. Only within the framework of natural rights—among which are the equal rights of all human persons: rights to life, liberty, and property—can majority rule function rightly and legitimately.
But Madison also speaks of “ultimate happiness” as the true “political standard of right and wrong.” In this sense it is, he says, “qualified with every necessary moral ingredient.” Madison tacitly assumes Aristotle’s definition of happiness, as an “activity of virtue.”
George Washington, in his first inaugural, declared that “the foundations of our national policy will be laid in the pure and immutable principles of private morality.” To this he added that “there is no truth more thoroughly established than that there exists in the economy and course of nature, an indissoluble union of virtue and happiness.”
It is clear that, for the Founding Fathers, individual rights—including the right to the pursuit of happiness—always possess that “moral ingredient” that directs them, as John Paul says, towards the common good. This is in contrast to that large body of conservative opinion today that regards natural rights as merely idiosyncratic and self-regarding.
* * *
How profoundly alienated from the Founding principles is present day conservative thought, is shown by the following passages from the celebrated essay on “The Notion of a Living Constitution” by our present Chief Justice. In it he replies to liberal judicial activists, who would empower the courts to discover constitutional rights for any wrongs that, in the justice’s opinion, need remedies. This would, as Mr. Justice Rehnquist rightly contends, turn the Constitution into a blank paper on which the Supreme Court might write at its pleasure.
In repelling liberal judicial activism, Mr. Rehnquist admonishes those who, he says,
ignore totally the nature of political value judgments in a democratic society. If such a society adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards do indeed take on a generalized moral rightness or goodness. They assume a general acceptance neither because of any intrinsic worth nor because of any unique origins in someone’s idea of natural justice, but instead, simply because they have been incorporated in a constitution by a people.
It is difficult for anyone, encountering this statement for the first time, to appreciate its absolute opposition to everything Abraham Lincoln believed, as well as to the convictions of those who framed, and those who ratified, the Constitution. This is the negation of Pope John Paul’s message. It is not only damaging in itself but, as we shall see, it supplies the rationale for that boundless judicial activism it purports to resist.
Consider: to say that safeguards for individual liberty do not have any intrinsic worth is to say that individual liberty does not have any intrinsic worth. To say that individual liberty does not have any intrinsic worth is to say that the individual human person does not have any intrinsic worth. This is to deny that we are endowed with rights by our Creator. To deny that is, in effect, to deny that there is a Creator. This is atheism and nihilism no less than moral relativism.
According to Rehnquist and Scalia the only rights that the people have are the rights that the people themselves have decreed. The people have become their own God. A people thus conceived may choose to express their rights by any form of government whatever. The legitimacy of Hitler and of Stalin was ratified by plebiscite. The moral relativism which denies any intrinsic worth to human freedom, or human life, can justify any form of government, however criminal or brutal.
Rehnquist, and his followers, are mistaken in supposing that it justifies majority rule more than any other form of government. The triumph of will has no boundaries of reason. This is unadorned positivism, relativism, and nihilism. This is the crisis at the heart of present day conservatism. This is the crisis of the West.
Rehnquist says that safeguards for individual liberty “take on” generalized moral rightness or goodness only “because they have been incorporated in a constitution by a people.” If, however, one “value judgment” has zero intrinsic worth, multiplying this zero by a million or a billion adds nothing to its intrinsic worth. The aforesaid “moral rightness or goodness” is therefore only an illusion arising from the fact that it is “generalized.” On Rehnquist’s premises, there is no such thing as intrinsic moral rightness. Morality as an intrinsic good is an illusion.
Concerning the original Constitution, let us consider that, besides its safeguards for individual liberty, it had notable and powerful safeguards for slavery. These safeguards were adopted by the same people, and at the same time, as the safeguards for individual liberty. On Rehnquist’s premises, the safeguards for slavery take on the same generalized moral rightness and goodness as the safeguards for liberty. The moral equality of the safeguards for slavery and for liberty in the Constitution was the heart of the argument of John C. Calhoun in 1848, and constituted the heart of the argument for secession in 1860 and 1861.
The heart of the argument for liberal judicial activism is that the antebellum Constitution gave a moral sanction to slavery, and that the original Constitution was therefore racist. The liberal argument is superior to Rehnquist’s, at least to the extent that it assumes that slavery is something intrinsically immoral. The liberal argument infers therefore that, because of its acceptance of slavery, the original intent of that Constitution has no moral authority. Hence, the case for a “living constitution,” in which the intent of enlightened justices replaces that of the racist framers and ratifiers.
The late Justice Thurgood Marshall, on the bicentennial of the Constitution in 1987, said we had no just cause for celebrating that racist document. Under it, he said, Negroes “had no rights which the white man was bound to respect.” These words, however, were not his own. They came from Chief Justice Taney’s opinion for the Court in the case of Dred Scott.
Taney had reached this conclusion, in part, by asserting that the proposition that “all men are created equal” in the Declaration of Independence was never understood to include black human beings; that they were regarded by those who framed and ratified the Constitution as so far inferior, and that they might be justly enslaved for their own benefit.
However, Taney’s assertion, uncritically accepted by Marshall, is as great a falsehood as has ever been perpetrated in a public forum since the world began. Yet this falsehood, damaging to every cause supposedly held dear by Mr. Justice Marshall in his long career, has not only been given credence by him, but has been disseminated as truth.
It has also been propagated by Professor John Hope Franklin, recently appointed by President Clinton to head his commission on race relations. This lie—which may be compared to the Protocols of the Elders of Zion—has become canonical for what once was the civil rights movement, and which has been transformed thereby into a movement for black power.
Taney’s assertion that blacks had been excluded from the benefit of the rights asserted for “all men” in the Declaration of Independence was refuted at the time in Justice Curtis’s dissenting opinion, and shortly thereafter, in one of his greatest speeches, by Abraham Lincoln. Having written so extensively and so long on this, I will here assert no more than that Taney’s opinion concerning black inferiority had no more standing in reason than Hitler’s assertions about the Jews.
What is astonishing is not only that Thurgood Marshall and John Hope Franklin continue to echo Taney, but that they continue to ignore the refutation of Taney by Abraham Lincoln. What is even more astonishing is that Rehnquist, Bork, and their followers are as persistent in ignoring Lincoln as Marshall and Franklin. What unites Marshall and Franklin and their followers with Bork, Rehnquist, and their followers is the refusal to grant constitutional standing to the doctrine of natural rights enunciated in the Declaration of Independence, and expounded by Lincoln.4
According to Lincoln, the original Constitution had recognized slavery only as a matter of necessity, but not of right. Without the guarantees to slavery, the Constitution would not have been ratified. No alternative form of government—certainly not the government under the Articles of Confederation—would have been strong enough to contain slavery. Only the government of the Constitution could have been able to limit the extension of slavery, and to place slavery “in course of ultimate extinction.”
Paradoxical as it may seem, Lincoln said, it was in the interest of the slaves themselves that the concessions to slavery be made in 1787. The documentary record of the Founding is filled with recognition of the incompatibility of slavery and the principles of the Declaration of Independence. Slavery had, however, been planted in the colonies when they were dependent upon Great Britain and had no power of their own to control it. During that time, slavery had become deeply rooted and entwined in all their social institutions, their property relations, and economy.
Against the charge of racism in the Founding, it can be said that
[it] was hardly wonderful that a nation of slave holders, on becoming independent, did not abolish slavery. What was wonderful—nay, miraculous—was that a nation of slave holders, on becoming independent, declared that all men are created equal, and thereby made it a moral and political necessity, that slavery be abolished.
The American Founding, in its principles, was antiracist to the core. But the antiracism of the original Constitution—and its original intent—can only be understood if one distinguishes the principles of the Constitution from the compromises of that Constitution. This is what Bork and Rehnquist and their followers refuse to do. The distinction between principles and compromises is not made in the text of the Constitution, and therefore is denied any place in constitutional jurisprudence by these legal positivists. Yet without it, the charge of racism is plausible, and so is the liberal judicial activism based upon it.5
The conflict today between liberals and conservatives centers largely upon the interpretation of the equal protection clause of the fourteenth amendment. In that dispute, Taney’s assertion that Negroes were never included in the proposition of human equality is the foundation of the liberal insistence that the Constitution is not, and never has been, color blind. In a color coded Constitution, the purpose of the fourteenth amendment is to remedy the grievances of blacks. There can therefore be no objections to color or race-based remedies.
To this the Rehnquist and Bork followers have no answer. They could find one only if they insisted that Taney was wrong about the original Constitution, and that the principles of the Constitution were those of the Declaration of Independence, rightly understood. From this it is apparent that the conspiracy against the genuine principles of the Declaration of Independence rests upon collusion between the liberals and the conservatives.
* * *
If we widen our vision to the broader field of political philosophy, we see the conservatism of the last half century compounded largely of paleoconservatives and neoconservatives. The many subgroups, of economic conservatives and social conservatives, of libertarians and traditionalists, are, for present purposes, sufficiently comprehended within these two larger categories.
At the head and front of the paleocons is the late Russell Kirk, whose Conservative Mind, published in the early ’50s, is widely credited as the defining work of contemporary conservatism. Equally conspicuous is the “godfather” of neoconservatism, Irving Kristol. These two did not—for good reason—like or trust each other. Kirk’s traditionalism was not merely an allegiance to eighteenth century British constitutionalism, as understood (allegedly) by Edmund Burke, but to surviving elements of the class structured ancient regime within it.
Like T.S. Eliot, Kirk wanted Christianity established in America. Like Eliot, he thought that “free thinking Jews” were a corrosive element within Christian civilization. For Kirk, the Enlightenment, as the moving cause of Jewish emancipation, as well as of the French Revolution, was the source of virtually all evil in the modern world.
Irving Kristol, on the other hand, is the very prototype of the free thinking Jewish intellectual denigrated by Eliot. He is someone whose very existence, as a modern, non- orthodox albeit loyal Jew, was rendered possible by the Enlightenment. Kristol celebrates all those elements of upward mobility in capitalism that undermine inherited status, so dear to Kirk, whether based upon birth, old wealth, or religious conformity.
Notwithstanding the great gulf between them, Kirk and Kristol have been as one in their fanatical opposition to the doctrines embodied in the Declaration of Independence. Like Carl Becker, they held that “To ask whether the natural rights philosophy of the Declaration of Independence is true or false, is essentially a meaningless question.” This has been their received and unexamined premise. They are undisturbed by the fact that it renders meaningless the American political tradition itself.
Yet all their influence has been exerted to ignore or ridicule anyone who—like Jefferson, Lincoln, and Pope John Paul—believes that the truths held to be self-evident really are so, and can be proved to be so. Here is how Kirk trivializes the Declaration of Independence. In an introduction to a reprinting of Albert Jay Nock’s Mr. Jefferson, Kirk wrote:
Nock’s book has very little to say about the Declaration of Independence. That is as it should be, for the Declaration is not conspicuously American in its ideas or its phrases, and not even characteristically Jeffersonian.
As Carl Becker sufficiently explains, the Declaration was meant to persuade the court of France, and the philosophes of Paris, that the Americans were sufficiently un-English to deserve military assistance. Jefferson’s Declaration is a successful instrument of diplomacy; it is not a work of political philosophy or an instrument of government, and Jefferson himself said little about it after 1776.
It is doubtful whether, in the history of the world, more errors have ever been compressed into fewer words. Beginning at the end, we only note that authorship of the Declaration was the first of the three things by which Jefferson wished most to be remembered, and which he caused to be inscribed upon his tombstone. In his celebrated letter to Henry Lee, Jefferson said of the Declaration that,
Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give that expression the proper tone and spirit called for by the occasion.
Not a word about the court of France! What Carl Becker actually said, moreover, was the exact opposite of what Kirk attributed to him:
Democratic impudence could not well go farther than to ask the descendant of Louis XIV to approve a rebellion based upon the theory that “governments derive their just powers from the consent of the governed.” If the French government received the Declaration, it did so in spite of its political philosophy because it could not forego the opportunity in disrupting the British empire.
It did not occur to Becker, and so far as I know it has never occurred to any other literate person, whether they agreed with it or not, that the Declaration of Independence is not a work of political philosophy. Certainly Pope John Paul regards it as a repository of philosophic truth.
The Declaration is today the first of the Organic Laws of the United States in the United States Code. All acts and deeds of the United States since 1776, including the original Constitution, have been dated from its signing. According to a joint statement of Madison and Jefferson in 1825, the Declaration is not only the act of separation of the thirteen colonies from Great Britain but “the act of Union” by which the thirteen became one.6 Kirk’s assertions about the Declaration are expressions of ideological fanaticism, with no foundation in history or reason.
Here is how Irving Kristol refers to the “moral truths” of the Declaration to which John Paul is a witness.
To perceive the true purposes of the American Revolution it is wise to ignore some of the more grandiloquent declamations of the moment.7
That “all men are created equal” is of course the most grandiloquent of the aforesaid declamations. Kristol has a habit of asking us wisely to ignore whatever he does not like. In the same essay he refers to Tom Paine as “an English radical who never really understood America [and] is especially worth ignoring.”
But Tom Paine gave the decisive impetus to independence in the winter and spring of 1776. Early in the year, General Washington toasted the King’s health in his officers’ mess, until he encountered the “sound doctrine and unanswerable reasoning” of Common Sense. What finally turned George Washington to independence is what Kristol asks us to ignore. It is also worth mentioning that this man who is said never to have understood America, carried a musket in the battle of Trenton.
In 1976, Tom Paine was Kristol’s surrogate for Thomas Jefferson. Recently, however, Kristol has lost all restraint in belittling, not only Jefferson, but the entire Founding. The authors of the Constitution, he now says,
were for the most part not particularly interested in religion. I am not aware that any of them wrote anything worth reading on religion, especially Jefferson, who wrote nothing worth reading on religion or almost anything else.
I cannot recall a more comprehensive depreciation of the writing in which Pope John Paul discovered moral wisdom. Nor is there a greater measure of the alienation of present day conservatism from that wisdom. What kind of education is possible, when young people are told, by an ancient of their tribe, that the author of the two greatest documents of civil and religious liberty in the history of the world is not worth reading!
Jefferson, being in Paris in 1787, was not, of course, one of the authors of the Constitution. Nevertheless, nothing dominated the consciousness of all the Founders, including Jefferson, more than abhorrence of the wars of religion, and religious persecution, which had borne down European politics for more than two hundred years. The Constitution of 1787 heralded the novus ordo seclorum, the new order of the ages, when it declared that there should never be a religious test for office.
There was no precedent for this in human history. The subsequent provision in the first amendment, against an establishment of religion, and against any prohibition of its free exercise, applied—at least before the fourteenth amendment—only to the federal government. But the pure doctrine, as it applied to all free government, was enunciated the year before the constitutional convention, in the statute of Virginia for religious liberty.
That statute, drafted by Thomas Jefferson, was the outcome of a long and intense struggle for disestablishment of the Episcopal Church, a struggle led by James Madison, and supported by George Washington. Madison’s 1785 Memorial and Remonstrance against religious establishment is unsurpassed in the acuteness of its reflections on the relationship between religious freedom, true religion, and free government. Jefferson put these thoughts into final form in the statute, which declared that “our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”
While the Virginia law of 1786 applied only to Virginia, its argument became in time the basis, not only of federal law, but of the law of all fifty states. It was clear to the Founders, if not to Mr. Kristol (or to Justices Scalia and Rehnquist), that a system of majority rule was impossible if the majority had the power to decide in what way its citizens must worship God. No Catholic could be compelled by majority rule to become a Protestant, or vice versa. No Jew could be compelled by majority rule to become a Christian, or vice versa.
Only by removing all such questions of religious belief from the political process, was government by majority rule possible. Nor was this designed only to provide for civil peace. Removing both penalties against nonconformity and rewards for conformity contributed greatly to the purity of religion. A man’s relationship to his Maker ought to be exempt equally from the fears and temptations of politics. As Pope John Paul declares, “the fundamental right to religious freedom is the guarantee of every other human right.”
George Weigel recently commented, “if there is a sanctuary of conscience inside every human person where no earthly power can legitimately tread, then the state is, by definition, a limited government.” The distinction between church and state has been elaborated into that between state and society, the church being the first, but not the last, of the voluntary associations exempted from control by government.
It was separation of church and state that led Tocqueville to declare that in America, religion was the first of political institutions. What he meant was that the churches, freed from sectarian political strife, could jointly and severally inculcate and support those moral truths common to all the churches, moral truths enshrined in the “laws of nature and of nature’s God.” This was also the reason why, he thought, the Americans were a more religious people than those of Europe.
While Irving Kristol does not think the Founders wrote much worth reading on religion, he is not lacking in confidence in what he himself has to say in the subject. A commercial society like ours, he says, must have a
religious tradition…to correct [its] natural propensity…to debase itself. It provides something else that is critically necessary, namely, some absolute foundation for our moral values…. But…values are not created; values are inherited.
There is no such thing as a rationalist religion which gives you an authoritative moral code…. There are no rationalist Ten Commandments. Morality is derived from certain fundamental dogmatic truths, and I emphasize the word dogmatic. It is the function of a religion, in a society such as ours, to provide the dogmatic basis for those truths.
Kristol assumes that reason cannot supply the opinions—dogmas—that are necessary for the moral health of society. In this he differs, not only from me, but from Pope John Paul and the Founders. In what follows is the only place I am mentioned (so far as I know) in his published work.
As this pertains to the American political tradition, we enter some controversy, which will be better understood if I compare my views to those of Harry Jaffa…. Mr. Jaffa, quite correctly, feels that in discussing the issue of human rights one must raise the question of what human rights are based upon….
You have got to have a fundamental, unshakable basis for your conviction in a given set of human rights, and Harry Jaffa’s is that the rights expressed in the Declaration of Independence, in the end, rely on the natural law and natural rights tradition which goes back through Thomas Aquinas to Aristotle.
I think he is wrong. As I see it, our dogma in regard to such matters as human rights comes from the Protestantized version of the Judeo-Christian tradition. … Why do we cherish human rights? Because of something called “the dignity of man,” a key phrase.
That is something that emerges out of Jewish doctrine, out of Christian doctrine, and in modern form, out of Protestantism, which insists upon the dignity of the individual soul and the relation of this individual soul to the Deity.
I pass over the fact that Kristol speaks of “moral values,” the language of subjectivity, rather than “moral truths.” Kristol also speaks of the aforesaid being inherited, not created. But which inheritance is to be prized, and which rejected? Willmoore Kendall used to say that tarring and feathering, and riding on a rail, was as much an American tradition as freedom of speech. Of course. But one is a bad tradition and the other is a good tradition. That is a judgment that must be made by reason. Rehnquist would tell Kristol that he has no right to fob off his preferred values as our inheritance.
Kristol rightly celebrates the idea of the dignity of man as the source of our good inheritance. I could not agree more. And it is precisely this that is enshrined in the Declaration of Independence. The Declaration, moreover, links this dignity, as Kristol himself thinks it should be, to man’s relationship to God. For man’s dignity, and the dignity of his rights, comes from the fact that he is endowed with them by his Creator.
Kristol says that society needs a dogmatic foundation for its moral convictions, laying great emphasis upon the word “dogmatic”. But surely, nowhere in the records of the world is there a more eloquent and confident expression of moral conviction than the passage beginning, “We hold these truths to be self-evident.” Pope John Paul looks to these words for a renewal of the moral truths to which the Founders pledged their lives, fortunes, and sacred honor. But how can this be, if we are persuaded that this is mere grandiloquence, and can be conveniently ignored!
Kristol looks to the authority of the “Protestantized” version of the Judeo-Christian tradition. He would have a much needed revelation were he to read the Protestant sermons of the Revolutionary period assembled by Ellis Sandoz.
What follows is an excerpt which, I believe, captures the very heart of that Protestantism. The following is taken from the sermon delivered by Rev. Samuel Cooper, before the Governor (John Hancock) and the legislature of Massachusetts, on the occasion of the inauguration of the government under the 1780 state Constitution.
We want not indeed a special revelation from heaven to teach us that men are born equal and free; that no man has a natural claim of dominion over his neighbors, nor any one nation any such claim upon another; and that as government is only the administration of the affairs of a number of men combined for their own security and happiness, such a society has a right freely to determine by whom and in what manner their own affairs shall be administered.
These are the plain dictates of that reason and common sense with which the common parent of men has informed the human bosom.
It is, however, a satisfaction to observe such everlasting maxims of equity confirmed, and impressed upon the consciences of men, by the instructions, precepts, and examples given us in the sacred oracles; one internal mark of their divine original, and that they come from him “who hath made of one blood all nations to dwell upon the face of the earth,” whose authority sanctifies only those governments that instead of oppressing any part of his family, vindicate the oppressed, and restrain and punish the oppressor.
What needs not special revelation is nothing less than the doctrines of the Declaration of Independence, which happen also to be incorporated in the Massachusetts Constitution. The truth of these doctrines is attested by right reason, which is the voice of God no less than the “sacred oracles.”
That God has informed the human bosom with the plain dictates of reason and common sense has been a vital element of the Judeo-Christian tradition, at least since Aristotelian rationalism was infused into Judaism by Maimonides, and into Christianity by Thomas Aquinas. It is precisely the non-sectarian rationalism of this Protestantism that infuses the American Founding with a perfection unparalleled in human annals.
That reason is non-sectarian is recognized by the Pope, but not by Kirk or Kristol. We conclude this discourse on Lincoln’s birthday, by noting the place of Lincoln in Kristol’s pantheon. If Lincoln was so benighted as to believe that “The principles of Jefferson are the definitions and axioms of free society,” it would seem to follow that he, like Jefferson, never wrote anything worth reading. This would seem to be borne out by the following.
If one were to write an American history textbook with the chapter on the Civil War dropped out, to be replaced by a single sentence to the effect that slavery was abolished by constitutional amendment in 1865, very little in subsequent chapters as now written would need revision….
A textbook on American intellectual history could safely ignore the Civil War, were it not for the fact that so much suffering should be so barren of consequence. The Civil War was and is a most memorable event—but not any kind of turning point in American history.
If one could safely ignore everything Irving Kristol says it is safe to ignore, we could certainly reduce our curricula, and begin to make some economies in college tuition. Can any literate persons believe however that the Civil War was barren of consequence, and that it was not a turning point of any kind in American history? The Civil War was a great rebellion against the principle that all men are created equal.
In the antebellum period, the contest between those who affirmed and those who denied the truth of that proposition was conducted with the utmost intensity. It was also conducted—on both sides—with perhaps greater skill and intellectual resourcefulness than any political contest, ancient or modern.
In the House Divided speech, and in the ensuing debates with Douglas, Lincoln transformed the Founding itself from an event in time into an eternal idea. In the event, Lincoln compelled the American people to understand that no one deserved freedom for himself who would deny it to another. That was the message that the American people made good with their blood, but their sacrifice was, as Pope John Paul says, a sacrifice not for themselves alone, but for all mankind. It would not be safe, or wise, to think that our schoolchildren—our posterity—should ignore the Gettysburg Address.
1Before World War II, Lincoln scholarship was dominated by the “unnecessary war” thesis. I believe Crisis of the House Divided (1959) and Don Fehrenbacher’s Prelude to Greatness (1962) were the first serious books to take seriously the thesis of the House Divided speech.
2Addressed recently to an audience at the Gregorian University in Rome.
3One might also mention the collective suicide of Jonestown, carried out after a decision by the majority.
4Bork, in The Tempting of America, went to the length of denying slavery any status in the Constitution of 1787. Taney, in Dred Scott, he wrote, had invented a right to own slaves that is “nowhere in the Constitution.” When confronted with the three notable places in the Constitution that recognized slavery, two of them mentioned by Taney, he exploded in anger. Finally, he did admit that slavery had been recognized in the Constitution, but, he said, only “in a few places.”
5Former Attorney General Edwin Meese made advocacy of a jurisprudence of original intent the central theme of his tenure in office. In 1985, at Dickinson College, he made a notable speech in which the principles of the Declaration of Independence were boldly asserted to be the principles of the Constitution. When I later confronted him with the absolute rejection of these principles by Rehnquist and Bork, his two most prominent nominees, he turned away. See “Four Letters to Edwin Meese III,” in Original Intent and the Framers of the Constitution, (Regnery, 1994), pp. 389-400. I have been criticized by Mr. Meese’s friends for embarrassing him. Mr. Meese’s perplexity is not however merely personal. It is prototypical of a conservative movement that is angrily in denial.
6Most of the colonial assemblies, in their resolutions calling for independence, called for union at the same time.
7“The American Revolution as a Successful Revolution,” in America’s Continuing Revolution, (Anchor Press, 1976).