In my contribution to the Democracy Symposium, I acknowledged that modern economic realities may well require more of our government than our Founders contemplated some 22 decades ago. CK MacLeod worries that, as a Constitutional Conservative, I’ve wandered into a contradiction. By my own terms, according to Mr. MacLeod, our founding documents are expressions of absolute principles. Thus, the Constitutional Conservative is stuck in a Morton’s Fork: Either we are stuck with the rules designed for a 18th century world, or Constitutional Conservatism is kaput. Here’s Mr. MacLeod:
Leaving aside the question of whether the DoI can be considered as in any way binding, I don’t see it quite making an argument that ignoring the first principles of anti-monarchists necessarily leads to “absolute Despotism.” The deeper problem is that when, in statements like the above, you assert absolute principles and then at the same time admit, as TVD also does, that fairly fundamental compromises can and must be made, and even woven into the fabric of the nation, then we’re just left with absolute principles that aren’t even remotely absolute as actually applied, are honored only in the breach, as they say. They seem to be ideals or aspirations, apparently among others – including very practical ones like justice, general welfare, defense, and so on. So attacking Democrats or progressives or anyone else for violating the first set of principles (which are not in any way binding and which were already recognized as completely insufficient even within the document itself and certainly in the early history of the republic) begins to look completely arbitrary. There is no predictable system for turning any absolute moral precept into a real world policy – and the attempt to do so has historically been at least as often typical of despotism, especially in the modern age, as compromising and muddling through has been. Why shouldn’t we expect that the Constitutional Conservatives, if ever in a position to govern, would immediately set about to picking and choosing when to apply their preferred and loudly advertised ideals – either that or bring the whole structure crashing down chaotically?
Emphases mine, and I’ll begin with the first. Some of the principles in our founding documents are indeed expressions of the natural law. Take the freedoms of speech and religion, and the right to property, as examples. Deny these rights and, yes, the whole structure would come crashing down, as they are the cornerstones of our American project.
But others of the tenets in our Constitution are simply a recognition of other natural law principles. As just one example, consider James Madison recognition that men, by their very nature, are not angels—the recognition of which obsessed the framers with separating powers and installing checks and balances. And yet we can tweak the separation of powers and limits on government while still making appropriate safeguards against factions and injurious self-interest. The precise separations and checks and balances in the Constitution are not expressions of the natural law itself, like individual liberties are. The former are contingent propositions; the latter are necessary truths.
As to Mr. MacLeod’s second point emphasized in the excerpt above, it is a mistake to assume that the natural law is about the handing down of “absolute moral precepts.” The natural law is about deriving, through moral and logical reasoning, those truths about man and the world that must be accepted as true because they are antecedent to the ability to make cogent claims to knowledge about the world. Thus, the natural law cannot be rejected without casting oneself into arbitrariness and absurdity.
Much of the natural law project in American constitutional law is the giving of justifications. Even when it comes to fundamental liberties, the Constitution enjoins Congress from making any law abridging the freedom of speech, as distinguished from falsely announcing a fire in a crowded theater, for example. There is no right to do a wrong—a natural law Lincoln spent much blood, including his own, codifying into our second constitution. Not all speech is justified, and what is not may be properly enjoined (some of the Supreme Court’s confused jurisprudence to the contrary notwithstanding).
Individual rights and laws respecting them have everything to do with presumptions and the giving of justifications. In the American model, the individual is presumed to be free unless and until the government provides a justification, in terms of moral logic, that would abridge his freedom. Does this make for a “predictable system”? That depends on whether a people remain concerned about the giving of justifications, a proposition that is the source of much consternation. The past half century in constitutional jurisprudence has seen a right to “privacy” spring out of the Constitution, as if the moral quality of conduct is contingent upon architectural design. Progressive taxation, whose moral justification has never been properly vetted, is a given in modern politics and untouchable by a Court whose most stalwart conservative won’t even touch the natural law, and its insistence on the giving of moral justifications, with a ten foot pole.
When it comes to economic liberties, Constitutional Conservatives can, without any danger of contradicting their principles or appearing arbitrary, fully recognize that a number of moral justifications might be given as against the presumed freedom of the individual to do whatever he likes in the modern marketplace. The requirement, now as always, is the giving of reasons amounting to a moral justification. This, of course, will preclude such things as passing laws to find out what is in them. But that’s a problem for the other guys.