Presuppositional Constitutionalism

coin-in-god-we-trustDoes the Constitution assume certain presuppositions on the part of those it means to govern?  If so, what are those presuppositions? 

I submit the answer to the first question is yes, and explain the presuppositions that by necessity must be true for our Constitution to be intelligible. 

In light of the project begun here recently to explore the contemporary significance of the natural law, I  offer for your consideration my theory of natural law constitutionalism, or “presuppositional constitutionalism.”   It is largely based on Hadley Arkes’s theory set out in his 1986 book, First Things.  The theory, in short, is as follows:  Natural law and constitutionalism are each concerned with transcendental propositions that make their respective projects intelligible.  The U.S. Constitution, for example, does not state that its provisions are to be construed to avoid contradictions.  Nor does it anywhere use the word “unconstitutional.”  Yet, it does not give us any pause that, without any express guidance in the text of the Constitution, certain rules of logical and linguistic construction are applied to the Constitution, and that hundreds of laws have been struck down as “unconstitutional” without any express mechanism for doing so.  Why does this not concern us?  Because it would be absurd to presume that reasonable rules of construction would not be applied, or that a law that contradicts our Constitution could be anything other than unconstitutional.  These truths are implicit in logic.  To deny them would be the height of foolishness. 

I submit that there is a trove of such truths, preconditions I call them, that are found “under the hood” of the Constitution.  Each of them are necessary to making the document intelligible, and each of them would be utterly foolish to deny.  That is, denying them would render us incapable of giving an account for our knowledge about the world and would otherwise undermine our essence as human beings.  

This take on natural law reasoning is a little different than what is commonly advanced.  Yes, it still begins with an acknowledgement of the sort of being man is, holding this, his nature, as the touchstone for moral reasoning.  Based on certain notions about who man is and the sorts of things he was made for, we can engage in some reasoning about how his relationships ought to be ordered, how he should comport himself, what his rights and obligations are, and so on.  I’ve always had a great deal of sympathy for the project, and as to certain questions, I think it can often be compelling.  But I have never felt the teleology-centric approach captures its true force. 

To my thinking, many natural lawyers skip an enormously profitable theoretical step at the beginning of the inquiry.  That step is to acknowledge, as a presuppositional (a priori) matter, that it is man’s nature is to acquire knowledge.  Man, at his core, is a philosopher, an insatiable seeker of truth about his reality.  Truth and knowledge are related but different concepts that drive man’s reasoning and lead us to necessarily accept certain claims about reality and reject others.  Recall Descartes’ extreme critical reasoning exercise of casting himself in total self-doubt, disqualifying all information acquired through his senses.  This ultimate skepticism is the extreme form of man’s search for truth.  We cannot be sure that our senses do not betray us, or that what we call reality is not some elaborate dream, or that we are not in the Matrix.  If truth were man’s sole directive, we might still be mired in Cartesian doubt with nothing to show for the human project but the cogito

But truth is not man’s sole directive.  He also insists that he must know what can reasonably be known about his reality.  If he is to know anything about his reality, he must presuppose certain truths.  One will immediately detect a tension between truth and knowledge, as it would appear the project for establishing truth is to be compromised for the sake of the knowledge project.  Recall, however, that the truth project has never been advanced past the point of solipsism.  Man is thus left with this choice:  Accept that you may have knowledge of reality on the basis of reasonable presuppositions, or else accept that you may have no knowledge at all.  Given our nature as beings who crave to understand reality, the latter choice is the very definition of absurd.

On this point, Immanuel Kant gave the following answer to David Hume who, because of his atheism, was unable to escape the solipsism of Cartesian doubt and satisfy himself that there was any rational justification for a belief in causation:  “it is under this supposition only [i.e., the supposition that a rule of causation exists] that an experience of anything that happens becomes possible.”  The transcendental nature of causation as a rule is “the foundation of all experience, and consequently preceded it a priori.”  In other words, unless we are prepared to forfeit the possibility of knowledge about any experience whatsoever, causation must be true. 

Thomas Paine touched on a similar sentiment of transcendental political rules in his Dissertation on First Principles of Government: “Every art and science has some point or alphabet at which the study of that art or science begins and by the assistance of which the progress is facilitated. The same method ought to be observed with respect to the science of government.”  If we are to make anything in the science of politics intelligible, we must admit certain presuppositions that give rise to intelligibility.  Otherwise, we will effectively be mired in a dark age of political knowledge with no common ground on which to advance our project. 

To put it more simply, there are certain facts about the world that must be true.  Not because we can see or measure them—information acquired through our senses does not rise to the level of logical necessity.  There is no empirical fact that must be true.  As Thomas Reid observed, “Experience informs us only of what is, or has been, not of what must be.”  Indeed, we have already established we have reason to doubt those “facts” which we can know only by our senses.  Instead, these facts I am referring to must be true because, were they not, we would be cast into absolute solipsism and will have lost all connection with the world and with our fellow man.  In the philosophical sense, the person who rejects such truths is made a fool: he is unable to account for his reality, his relationships, indeed his very nature. 

Consider the common logical proof, “All men are mortal; Socrates is a man; thus, Socrates is mortal.”  The argument is both sound and valid, and its conclusion true.  Presumably, however, you are still free to reject it.  Moral and logical laws are not self-enforcing like physical laws are.  This observation prompted Robert Nozick to muse:  “Wouldn’t it be better if philosophical arguments left the person no possible answer at all, reducing him to impotent silence? Even then, he might sit there silently, smiling, Buddhalike. Perhaps philosophers need arguments so powerful they set up reverberations in the brain: if the person refuses to accept the conclusion, he dies. How’s that for a powerful argument?”

However, it would be wrong to suggest that rejecting the simple argument above would carry no consequences.  Observing that the premises are true and the form of the argument is sound, only a degenerate fool would reject the conclusion.  Again acknowledging that man’s nature is to acquire truth and knowledge about the world, we would rightly conclude such a person is, in a teleological sense (i.e., with respect to the sort of being he is and what he is made for), defective.  

Natural reasoning, then, begins with the project of ascertaining those facts about reality that must be true in order to get the knowledge project off the ground.  This is not to say that we can stipulate such facts arbitrarily.  This is where religion and metaphysics come into play to provide a coherent set of transcendental facts.  Which religion or metaphysical theory is most appealing can be left to the individual as far as the natural reasoning project goes.  However, it should provide a basis for overcoming the solipsism of Cartesian doubt, it should account for the existence of laws by establishing order in our reality, it should account for the existence of immaterial things such as numbers and grammar and the laws of logic, it should account for the reliability of our senses, and so on. 

(It should be observed that not all worldviews are created equal.  In the absence of religion or some other systematic way of developing a worldview, the project of giving an account of the necessary preconditions for intelligibility of reality may justifiably attract a host of criticisms.  Elsewhere, I have accused some atheists of engaging in “shopping cart epistemology,” positing what they need to be true about the world when the need arises, thus rendering their worldview ad hoc and arbitrary.  Hadley Arkes observes something similar, but ultimately concludes that, with respect to the natural law project, it is acceptable to posit that which is needed to make reality intelligible.  “[T]o say that we ‘assume’ or presuppose the existence of time [for example] is not to say that we indulge an arbitrary assumption whose truth cannot be known. It is to recognize, rather, that we are dealing with a necessary truth or first principle whose understanding provides the foundation for the understanding of all other things.”)

A persistent problem for natural lawyers has been the reluctance of skeptics to concede the existence of an objective morality.  It should be clear by now, however, that the empirical model itself has already forced the skeptic to concede the existence of certain non-empirical, presuppositional truths.  Now that we have established the necessity of truths that do not depend for their validity on experience or feelings or a consensus, the skeptic has no ground to deny the existence of morals.  That is, the skeptic acknowledges the existence of transcendental presuppositions to acquire one kind of knowledge.  The skeptic cannot arbitrarily deny the existence of other presuppositions to acquire a different kind of knowledge, moral knowledge, which is equally important to man’s understanding of his reality. 

With this in mind, we can begin to understand why certain political principle facts must be objectively true.  That all men are created equal is one such principle.  I must assume all men are of the same nature as I am.  Otherwise, I would have no intelligible basis for moral objection or approval of the actions of another.  I would have no intelligible basis for purporting to communicate or transact or reason with others.  It is only by assuming that others are of the same nature as I am that I can intelligibly and reasonably enter into relationships with them.  If I do not assume this fact, all my social interactions are betrayed and irrational and meaningless—I may as well be talking to a plant or a bar of soap or any other thing that is not of a nature equal to my own.  It is thus a transcendental necessity, a presuppositional fact about the world, that all men are created equal. 

Similarly, as Hadley Arkes observed, “acting morally is bound up with the exercise of giving reasons. And by ‘giving reasons,’ of course, we would not mean merely reporting on one’s motives (‘I hit him because I felt the need for excitement’), but offering justifications.”  Again, man cannot reject his essential nature as a moral being without conceding the possibility of making any moral judgments about the world, e.g., that murder and rape and genocide are evil, and that courage and charity and selflessness are praiseworthy. 

Property is established under a similar analysis.  Man must find what he needs for sustenance and flourishing in nature, and thus is of central importance to his worldview constructed through reason.  At the outset, then, we cannot say that man is presuppositionally neutral in this respect.  Man necessarily has some natural, pre-empirical relationship with property. 

Based on what we have already seen, we can begin to understand what that relationship is.  If all men are qualitatively equal, then no one man can impinge on another’s reasonable actions without justification.  Man need not give any account to any other for growing, gathering, catching, or producing the necessities of his life and flourishing so long as his activity does not impinge on another’s ability to do the same.  Inversely, man must gain consent or offer reasons amounting to a justification before taking the property of another.  A principle (if it could be called that) of “might makes right” would lay waste to man’s precommitment to reason and reason’s injunction not to act arbitrarily.  Natural physical strength is, as far as man is concerned, arbitrary and thus cannot in reason provide a justification for altering relationships between man and property. 

As a starting point, then, we may conclude that man has a natural right to private property.  This does not mean that we cannot enter into compacts by which we agree to pool our resources for a common or greater good.  Nor does it necessarily mean that a majority’s will could not justify the taking of an individual’s property for a greater good.  But even such a system conceptually begins with an acknowledgement of an individual right to property—the justification offered must outweigh the individual’s claim.  This analysis deserves its own post, so I do not attempt any further treatment here. 

Liberty is also a necessary presupposition to intelligibility of any political reality.  The fact of man’s essential moral nature carries the germ that hatches the idea of liberty.  Hadley Arkes set this out nicely with respect to  natural law’s injunction against racial discrimination, but the analysis also applies to liberty generally:

[T]he language of morals makes no sense when it is directed toward acts that are determined by the causal laws of nature. We could never sensibly say that the earth is obliged to revolve about the sun, and that it would be wrong—or worthy of blame—if it did not. The language of morals must presuppose, of necessity a being who is free to choose one course of action or another. It is only because that being is free that he can be held responsible for his acts, and that he may, with coherence, be blamed or praised. When people are rewarded or punished not for their own acts, but for the accident of their racial background, they are not praised or blamed for anything that it was in their power to affect, and they are treated, therefore, as though they did not in fact possess the freedom or autonomy of moral agents. They are treated as though their acts were determined by causal laws beyond their own governance. As we shall see, then, the wrongness of this racial discrimination is rooted in the very logic of morals, and therefore it must be said that racial discrimination is wrong of necessity.”

Likewise with respect to liberty, if man is not free to choose, he is denied the exercise of his essential moral nature.  The political guarantee of individual liberty, therefore, necessarily follows from natural law reasoning such that to deny it defeats his nature. 

We begin to see how natural law reasoning forms the basis of constitutionalism, particularly American constitutionalism. 

If you have read this very long post to this point, let me now offer why I think this sort of analysis is so important.  It has been submitted by others on this blog that political positions and principles are essentially nothing more than “ideology,” or “my team vs. your team” that are hopelessly partisan and ultimately matters of personal taste.  And we tend to float along with this mindset so long as we don’t feel too strongly about our disagreements.  But what happens when we do?  It is important that we explore what we mean by things like rights and moral reasoning.  We are not all just floating past one other on separate islands.  We share a common nature, and common faculties.  Some of our ideas comport with our nature and faculties, and others do not.  It is my firm belief that we can more effectively vet those ideas than we often do. 

I welcome your comments. 

[Cross-posted at the main page]

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at

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