This week I want to talk about law and morality. Is the United States Declaration of Independence illegal? This was the question before a panel of British and American lawyers at a recent debate in Philadelphia just a few blocks from where the document was originally drafted.
The American lawyers argued that “The English had used their own Declaration of Rights to depose King James II and these acts were deemed completely lawful and justified.” The British barristers responded that secession isn’t legal and what the English did centuries ago was different than what the American colonists had done. They asked, “What if Texas decided today it wanted to secede from the Union?”
Put another way, did the Founding Fathers have any respect for the law?
The American case in defense of the Declaration and the Revolution rested upon legal principles of natural law. It goes like this: government is an extension of the people and legitimate governments reflect the will of the people. But it goes further. Natural law also requires that government recognize personhood (call it human dignity or what it means to be a human being). A careful reading of the Declaration of Independence presents this argument masterfully which is why the document is sacred and revered.
The British case is that the Declaration was not only illegal but treasonous. The barristers argued that there is no legal principle to allow citizens to establish their own laws, separate and apart, from exiting laws. They said Abraham Lincoln made the case against seccession and that he was right. They also replied, of course Americans relied on natural law for the American Revolution because only an undefined theory of law could justify undoing the practical realities of law.
As an American, as a conservative, even as a Latter-day Saint living in Utah, I side with the Founding Fathers and their understanding and use of natural law to lay the intellectual grounds for a free society. But it’s not without its problems. For instance, conservatives (at least the smart ones) argue, as did Lord Acton, “liberty is the right to do what you ought to do,” that a human being has specific meaning that makes us human and that our laws should reflect that human identity.
The converse, that liberty is doing whatever you desire, doesn’t consider the human person at all. It simply reflects human behavior – the “what is” not the “what ought to be.” In this light, governments can do just about whatever those in power want them to do. Under these circumstances, Big Government doesn’t really care if you’re a libertarian or a Marxist because the starting point is the same: the human person doesn’t matter, only human behaviors matter. Of course, to differentiate, the libertarian would argue that one person’s desire can’t be exercised to harm another person. But the Marxist would argue that anything short of equality is “harm” and a whole intellectual circus would ensue.
Both the Marxist and the libertarian agree that a quality life rests upon human behavior, the former emphasizing results and the latter emphasizing the choice. This is why so many libertarians agree with liberals about social issues. They ask, “What’s the harm in using pornography?” “What’s the harm in using illicit drugs?” “What’s the harm in letting any two people get married?” That’s what the “liberaltarian” would ask.
Conservatives understand that freedom is the combination of liberty and virtue precisely because freedom is based on what we ought to do as human beings and not simply on what we want to do individually. The Founding Fathers knew this – even as they held slaves – they knew that freedom needed to be a reflection of the human person. This point is exactly why pro-slavery Americans and their legal defenders cleverly created the standard that blacks were only three-fifths human. If they were 100 percent human, slavery wouldn’t be morally justified.
When today’s Americans begin to understand what our Founders knew about the requirements for freedom, much of our present governmental and societal woes will disappear.
