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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, January 15, 2014

Timothy Sandefur and the DOI

Timothy Sandefur is guest blogging at Volokh Conspiracy, which is going about as well as the last one regarding the proper interpretation of the Constitution. I do think his defense of substantive due process "makes sense."

OTOH, going into the weeds, including a recent post (click his name [twice] and you will get a list of his posts) on slavery and the Constitution, is a tedious business and he loses his way as various comments suggest.  Still, he is no "liberal," though he tiresomely brings out the "the Progressives killed off the Constitution during the New Deal" trope (yeah, one rather live 1900 as to limited government ... if you were the right sort of person), so he helps clarify the issues as seen by SDP.

Talking about tedious, I had debates with people who are on various issues people I respect that ended up with them lashing out at me (talk of "caterwauling" etc. -- the inability of some people to disagree without being disagreeable pricks is a pet peeve of mine).  This was particularly focused on the Declaration of Independence (DOI). This person insisted in effect those behind it were mostly full of shit, trying to convince "rubes" (his word) to support independence while not really believing what they were saying. Oh, just since apparently I didn't know, they supported slavery (the writer was a slave owning "rapist"), just to underline how full of shit they were.  The person also tossed in his usual distaste for use of religion here, confused as usual.

This sounds like a five year old view of things to me.  Pauline Maier, e.g., wrote a book on the DOI explaining how localities supported the same basic principles.  The DOI was a basic summary of the common sense of the matter, more or less, what was truly "self-evident" to the many at the time.  This included, quite honestly, the people who wrote the document. The general principles -- limited government, personal rights, republicanism, right to revolution, some sense that rights are pre-exisiting with governments set up to secure them etc. -- was broadly agreed upon, though the particulars were obviously debated.

Also, the DOI was a set of ideals (putting aside of bill of indictment of King George) that were imperfectly put in place by mortal governments.  So, they quite honestly believed in some sense of equality (e.g., poor or rich, certain basic rights), even if they denied it (even as some knew it was wrong) to slaves.  It is not naivete to state that they truly believed what they saying -- of course, "up to a point" and as applied imperfectly. One of the gems of the DOI is that like other ideals (such as the Ten Commandments) it stands as a goal to move toward. The inability or failure to meet it does not mean promoters are full of it.  And, the idea the people were rubes tricked by them was particularly distasteful.

Another person lashing at it me didn't like my guarded opinion that TS was correct up to a point to state that the DOI provides a baseline that the Constitution must follow.  The same person responded separately citing the clause about Indians being "savages" as an obvious example of how "we" don't believe in the DOI any more. Give me a break. The fact some stray remark (contra his comment, not a 'principle' but a misguided statement of fact in this case) is not supported doesn't mean the DOI as a whole still is not respected as a whole. Repeatedly, it was used up to today as a text to reaffirm basic principles such as equality. I am hard pressed, honestly, to find much that is out of date in it. 

TS thinks that constitutions should have a certain character to be just. On some level, though he loses me on the details, this makes sense. Political philosophers for eons have spoken about just government and the DOI does provide the basics of what is generally seen as necessary givens. It's written in such generalities that without more it is not enough. And, if you go down the list of abuses, e.g., some of the institutions (such as juries or separation of powers) may not be necessary. Still, is equality not? etc.

A particular argument is that there are certain underlining principles necessary even when amending the Constitution. Art. V only lists one express limit that is still active and personally I think that too can be avoided by amending the Constitution to remove the provision.  But, perhaps since we are amending the "Constitution" that there is implicit limits, perhaps suggested by the Ninth Amendment (rights protected even from amendment).  For instance, an amendment to deny some basic right deemed inalienable or at least of central fundamental importance.

TS suggests at some point this would be "unconstitutional" and even the courts should recognize the fact.  I think many basically think so -- that is, they think at some point an amendment is so just that it would be unjust to submit it. If somehow it went through, it still would be unjust. Now, ultimately, I think this a political question -- don't think the courts really would be best able to decide it. And, realistically, if the people wanted to, it could amend it. Still, even then, I think it better to at some point see it as a new constitution. A new government.  The DOI authorizes that and if the Constitution is so changed that it loses its basic character is it not more honest to say we have a truly new one?  OTOH, yes, perhaps that is what we have now -- the 13-15A, for instance.  So, maybe it's semantics.

I think the ideas that the DOI still matters (including as a means to interpret various provisions of the Constitution*) and holds true overall are correct. The limitations involved here are duly noted and there is no desire to be a naive idealist here. This includes realizing the imperfections and mixed motives of those who first put out.  Overcompensating the other way is as misguided, even if done with a bit more grace than here. And, who determines things here? Is it a tie to the hand of the dead? No. The DOI provides broad brushes that we today give meaning to.

The rub then would be if even the brushes were out of date. As noted, I don't see it. The only real problem might be the touches about "natural law," particularly references to some deity. But, natural law is a flexible animal, which can be translated to fundamental givens that are particularly important, but not quite set in stone (see also, "no" in the 1A).  As a whole, the people still believe in some sort of deity, but even there, it can be seen as more properly a sort of metaphor for justice or "good." It does not seem to me to alter the document too much to translate it in this fashion. As with other past works, including works of religion and philosophy, as a whole, it retains a basic value worthy of special respect. Not as a graven image, but still somewhat unique.


* One can find online various listings of the diverse citations of the DOI in legal opinions of varying types. One comment on the threads there note at least a few state enabling acts required that the government honor its principles, so it was a means of determining guaranteeing a republican form of government.  Also, the DOI was cited repeatedly by those involved in the 13A/14A, including to express principles of freedom, liberty and equality. Justice Stevens (later on too, then joined by Ginsburg) provided another example:

If man were a creature of the State, the analysis would be correct. But neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.

I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.
Justice (then judge) Cardozo once noted that natural law is usually cited to fill in gaps -- positive law provides text but the ultimate meaning and reach is at times unclear.  The DOI can serve this purpose. Not alone, but as a still relevant important document. 

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