In the more than 200 years of our history, the most difficult of all truths, and the one most often and most profoundly subject to censure or misinterpretation, is that beginning, "We hold these truths to be self-evident...." In 1860-61, 11 states justified "secession" from the Union, and forming a separate government, on the ground that they were exercising the right, as set forth in the Declaration of Independence, to withdraw their consent to be governed. Yet the secessionists denied categorically the assertion of the universal equality of human rights in the same Declaration of Independence, which was the moral and logically necessary ground of consent. The doctrine of states' rights—central to much of American conservatism in the 20th century—has from the beginning divorced political right from the equal natural rights of individual human beings, under "the laws of nature and of nature's God." This was the principal ground of difference in the struggles against Jim Crow and for civil rights. Today, in the controversy over "affirmative action" in its many guises and embodiments we find the former leaders in the movement for civil rights—amazingly and paradoxically—demanding rewards and privileges, not as individuals but on the basis of their collective racial or ethnic identities. And we find conservatives (or at least some of them) on the other side—no less paradoxically—opposing affirmative action as contrary to the individual rights proclaimed in the Declaration! Clearly, precision concerning the real meaning of the Declaration of Independence, and its bearing on the institutions of government (especially the Constitution), is the most urgent order of business for us.
For perspective on our present situation, consider another Wall Street Journal editorial page essay, published in 1976 to celebrate the 200th anniversary of Independence. It is entitled "The Meaning of the Declaration," and its author is George Carey, professor of government at Georgetown University and co-author, with the late Willmoore Kendall, of Basic Symbols of the American Political Tradition. The most notable feature of Basic Symbols was the contention that Lincoln at Gettysburg had "derailed" the American political tradition by assigning to the proposition "that all men are created equal," a meaning and importance that it did not have in 1776, or at any time in the "four score and seven years" thereafter. The most notable feature of Carey's bicentennial commentary in the Journal was his attempt to say what was the original historical meaning of the Declaration, the meaning it possessed before Lincoln's intervention. The "most likely meaning" of "all men are created equal," Carey argued, "is simply that all men or people who have identified themselves as one—as being a society of kindred souls, common values, and aspirations—are equal to all other peoples who have likewise identified themselves." Hence the Declaration was not one of individual rights, among them the rights to life and liberty, rights with which every human soul was equally endowed by his Creator. It was instead one of "community independence," with the status of individual rights within any community depending entirely upon the positive law of that community. Here is the origin of states' rights, as it came to be known in the defense, first of slavery, and then of segregation. But this interpretation did not originate with Carey or Kendall. It is to be found in the antebellum speeches of Jefferson Davis.
It is unlikely that the editors of the Wall Street Journal knew anything of the historical provenance of Carey's rendition of the meaning of the Declaration. They probably relied upon the fact that he was a respected professor at a leading university who respresented "objective" scholarship. Little did they know how partisan such scholarship could be, and how much of it was the Civil War continued by other means. Little did they know how victorious in this latter-day war had been the cause of John C. Calhoun and of Jefferson Davis, and how little success had attended the legacy of Abraham Lincoln.
Consider now the unhappy fate of Senator Trent Lott, who saluted Senator Strom Thurmond on his 100th birthday by saying that the country would have been better served by his election as president in 1948, than by the election of Harry Truman. Senator Thurmond in that year was the Dixiecrat candidate, representing the rebellion of the Jim Crow South against the first stirrings of the civil rights movement, in which President Truman had taken the lead, by desegregating the armed services. Senator Lott has, we might say, eaten crow for these remarks, and apologized profusely for having made them—but his apologies were not sufficient to save his position as majority leader of the Senate.
In 1984, Senator Lott, in a speech to the Sons of Confederate Veterans in Biloxi, Mississippi. declared that "[t]he spirit of Jefferson Davis lives in the Republican platform." The spirit of Jefferson Davis alive in the platform of the party of Lincoln? Senator Lott is a run-of-the-mill politician, who runs easily at the mouth, and says what he thinks his immediate audience wants to hear, forgetting that there are other audiences overhearing him. He is also a symptom of an intellectual environment alienated from the principles of the Declaration of Independence. His contrition was less a dictate of conscience than of circumstance. He apologized because he was told he had to apologize: he never seemed to realize why what he had said was wrong.
How the founding principles of this nation have been "censored out of recent debate" may be better understood from the argument in recent years between liberals and conservatives on how the Constitution is to be interpreted. Liberals, by and large, do not respect the original Constitution, in part because of the guarantees of slavery therein, but more profoundly because of their belief in Progress. In their view, the original Constitution reflects the defective moral consciousness of an earlier age, and should today be understood in the light of the higher stage to which moral understanding has now evolved. The conservatives, on the other hand, believe that the sovereignty—or ultimate authority—of the American people is embodied in their Constitution, and in the laws made pursuant thereof. Not only judges but all branches of government ought to interpret the Constitution in the light of the original intent of those who framed and ratified it. Until the people, in the exercise of their sovereignty, change the Constitution, the private consciences of judges or other office holders—or individual citizens—have no standing.
The liberals call their progressive, evolving Constitution, a "living Constitution." The conservative argument against it is to be found, most concisely and famously, in Chief Justice Rehnquist's classic essay on "The Notion of a Living Constitution." Those who would read their own, allegedly advanced opinions, into law, he says,
ignore...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 social 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.
Rehnquist accepts, without reflection or doubt, the idea that moral judgments—including the moral judgments upon which constitutional government rests—are "value judgments." This idea had its origin in Nietzsche, and became commonplace in American social science through the influence of Max Weber. It holds that there are no rational means by which any moral judgment, no matter how conscientious, can be proved to be superior to any other. It means that all moral judgments are arbitrary, and that there is no inherent reason for choosing the American constitution over a Nazi, Communist, Ku Klux Klan, or cannibal constitution. This understanding of moral and legal phenomena did not exist in the American mind at the time of the founding. It is as much a "progressive" belief as anything in the liberals' "living constitution."
The non-rational character of Rehnquist's position is reflected in the assertion that the safeguards for individual liberty do not possess "any intrinsic worth." Such worth implies rational discrimination, or knowing truth from falsehood, right from wrong, good from bad. From Rehnquist's perspective, neither individual liberty, nor individual life, possesses intrinsic worth, at least so far as human reason can tell. This is light-years removed from "We hold these truths to be self-evident...," and from the Declaration of Independence's denunciation of the evils of tyranny and despotism. It is light-years removed from the rights with which we have been endowed by our Creator, and from the Constitution designed to secure these rights.
The original Constitution together with the first 10 amendments has many "safeguards for individual liberty." But it also has safeguards for slavery, most conspicuously in the fugitive slave clause. The safeguards for liberty and the safeguards for slavery were incorporated into the same Constitution by the same people. To Lincoln, the safeguards for slavery were compromises with evil, necessary to secure the ratification of the Constitution. As such they were lesser evils than any possible alternative. On Rehnquist's premises, the safeguards for slavery took on the identical moral rightness or goodness as the safeguards for liberty. That the safeguards for slavery possessed the same moral standing as any other provisions of the Constitution, was the contention of the seceding states in 1860 and 1861. That slavery was denounced as immoral by Lincoln and the Republican Party was, they held, a denial of the moral understanding that formed the Constitution. Rehnquist's premises underlie, perhaps to his chagrin but apparently not Trent Lott's, Jefferson Davis's justification of secession and disunion. Here is the darkest of the difficult truths that have been censored out of recent debate.
Examples of such unrepublican, not to mention un-Republican, sentiments coming from conservative heroes could be multiplied. For instance, addressing the Gregorian Institute in Rome in 1996, Justice Antonin Scalia commented:
It seems to me incompatible with democratic theory that it is 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 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.
You 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.
Saddam Hussein recently held an election in which he received over 99% of the vote. Does that make him democratically elected? Does that make his regime any less tyrannical? Strictly speaking, what we call minority rights are not rights of the minority as such. They are rights of individuals, possessed equally by all. It is to secure these rights—the rights of man under the laws of nature and of nature's God—that governments are instituted, deriving their just powers from the consent of the governed. Government, and majority rule, extend only to these "just powers." Adoption by a majority does not make an unjust power just, e.g., the taking of private property without just compensation, the extension of slavery, the waging of aggressive war. Majority rule, in itself, is not a justification of anything. It may be called democratic only within a process in which there is free exercise of religion, freedom of speech, of the press, and of association. The ends served by majority rule are not decided by majority rule.
Scalia says that it is up to the majority to decide whether or not abortion should be lawful. One could substitute the word "slavery" for "abortion" to see that there is no difference between Scalia's majoritarianism and the "popular sovereignty" doctrine of Senator Stephen A. Douglas, in his debates with Abraham Lincoln in 1858. But Lincoln thought that slavery was wrong, and that it was condemned by the principle of human equality. He did not think that a vote of the people could make it right.
These three examples display the alarming intellectual weakness, forgetfulness, and even unfaithfulness that underlie American conservatism's political success. The examples show clearly that modern conservatism suffers from the same nihilism and postmodernism that dominate liberalism and that suppress dissent on our campuses. If conservatism is not to become a mirror-image of decadent liberalism, we have to return the movement to its roots in the political thought and actions of the American Founders and Abraham Lincoln. Nothing is at stake but the soul of the American Revolution, and the salvation of Western civilization.