Monday, November 11, 2013

"Distributive Justice"?, XIV: The Roots of Unreason


In the previous posting in this series we asked how things could have gotten so confused with respect to how the Chestertonian Establishment of today understands essential principles of the natural law.  After all, Chesterton spent so much time and effort promoting common sense that it defies logic how the Professional Chestertonians and neo-distributists could have gotten things so wrong as to be promoting so much that defies common sense and that is the opposite of much of what Chesterton advocated.

In a paradox of Chestertonian proportions, however, it is easy to understand why someone would shift from logic to unreason, however you want to characterize it: from reason to faith, from the intellect to the will, from common sense to nonsense, from consistency to contradiction — whatever.  It all boils down to figuring out a way to get you what you want, rather than worrying about what is good and right — and it is usually about money and power.

This has, frankly, been the cause of most social upheavals in history.  Economic self-interest was at the heart of the shift in the United States from a concept of law based on nature and inalienable rights, to one based on the will of the strongest.  As chronicled by William Crosskey in his monumental Politics and the Constitution (1953), the effort to preserve and extend chattel slavery led to the infamous Dred Scott decision that virtually ensured that only war would settle the slavery issue.

If we must blame Jefferson and the other Founding Fathers of the American republic for anything, it is for allowing the contradiction of slavery to remain.  Not only did this violate the very principles on which the new country was founded, it gave an incentive to begin undermining the natural law foundation of the country from the very beginning in an effort to preserve that contradiction.

Matters came to a head when Dred Scott sued for his freedom.  He had tried a number of times to purchase his liberty and had been denied.  Scott’s owner had been in the army, and had taken Scott with him as a body servant into the free states where he was stationed.  Scott logically argued that, having been taken into states where slavery was illegal, he was consequently free.  The Supreme Court decided that since Scott was not a person as that term is used in the Constitution (nor could anyone of African birth or descent ever be a person), his argument was without merit, and he was a slave, a chattel, regardless where his master took him.

What many historians don’t realize is that the Dred Scott case (Scott v. Sandford, 60 U.S. 393 (1857)) not only overturned the Missouri Compromise, it also shifted the presumed source of rights from people to the State.  This effectively abolished the whole concept of inalienable rights found in, e.g., the Declaration of Independence and the Virginia Declaration of Rights.  After Scott, if the Supreme Court decided someone is not a person as that term is used in the Constitution, then that someone is not a person.  Recent Supreme Court decisions extending constitutional rights to things while taking them away from human beings is simply the logical outcome of this shift.

Still, there was an effort to correct the situation.  The Fourteenth Amendment, intended in part to overturn Scott, restored the concept of inalienable rights.  Less than five years later, however, the U.S. Supreme Court effectively nullified the Fourteenth Amendment in its extraordinarily equivocal decision in the Slaughterhouse Cases of 1873.  According to Crosskey, the decision in Slaughterhouse, in his analysis purely a power grab, gave the Supreme Court the power to make a decision based on what the Court wanted, rather than on what the Constitution actually said — what some have called “legislation by judiciary.”  As Crosskey explained,

“So, the Court’s opinion in the Slaughter-House Cases was, undoubtedly, most craftily written; written so as to enable the Court, with a good face, in future cases, to jump either way: to observe the intended meaning of the Privileges and Immunities Clause if that seemed unavoidable, or, in the alternative, to destroy the clause utterly if this seemed safe.  And the fact that this elaborate preparation was made also means that the majority Justices saw and fully comprehended the possibility of the intermediate, plain, and sensible meaning of the Privileges and Immunities Clause here expounded, to which, indeed, Justice Bradley called attention, in his dissenting opinion.  So, the majority must, as the minority charged, already have determined, if they dared, to destroy this new provision of the Constitution [i.e., the Fourteenth Amendment] completely.” (William Crosskey, Politics and the Constitution in the History of the United States.  Chicago, Illinois: The University of Chicago Press, 1953, 1130.)

By reinforcing the legal and social revolution the Supreme Court had wrought in the Dred Scott case in the face of constitutional action by Congress to overturn the decision, the Court completely changed the meaning of the Constitution and made the Preamble a meaningless noise.  The decision in the Slaughterhouse Cases also made it possible for the Court to grant or take away at will even presumably natural and thus inalienable rights such as life, liberty, and property.

As we have seen in this series, certain rights are vested in each human being at the moment of creation as part of nature itself as an act of Intellect.  This is true no matter how you believe that creation took place.  Rights are therefore not a separate grant subsequent to creation as an act of Will by the Creator, the State, or anything else.

The Dred Scott decision, even though overturned by Congress — which effort was later nullified by the Court’s decision in the Slaughterhouse Cases — turned this completely around.  By separating being and personality, the Supreme Court’s shift from Intellect to the Will as the basis of the natural law broke or dissolved the unity of the Intellect, and thus of nature itself.  There were and could be no more absolutes — at the same time that the Court relied on that absolutely.

The first principle of reason — the principle of contradiction/identity — was down for the count, at least as far as the role of the State and the basis of government in the United States was concerned.  It was not long before this contradiction inserted itself into American society as a whole, to burst into full bloom with the Keyensian New Deal less than sixty years later, and bear fruit in the financial and economic chaos we enjoy today.

As Chesterton described Aquinas’s debate with Siger of Brabant, a similar situation in which the foundations of reason were also called into question, what the United States Supreme Court succeeded in doing was to

“. . . split the human head in two, like the blow in an old legend of battle; and declared that a man has two minds, with one of which he must entirely believe and with the other may utterly disbelieve.  To many this would at least seem like a parody of Thomism.  As a fact, it was the assassination of Thomism.  It was not two ways of finding the same truth; it was an untruthful way of pretending that there are two truths.”  (The “Dumb Ox”, op. cit., 93.)

The great question was no longer how best to structure the social order so as to optimize each person’s opportunity to become more fully human by acquiring and developing virtue by exercising natural rights, i.e., how “to form a more perfect union.”  The issue was now the twofold paradox of whether anyone or anything are persons at all, and, if so, what power or powers makes that decision, i.e., who gives human beings and things the rights that make them persons?  Will over Intellect, that is, faith over reason, and pseudo charity over true justice, was now the official legal position of the American judiciary.

The only question was, faith in what?  God or the State?  Which is supreme?  God through the various religions that all seem to say different things?  Or the State through the government that has a monopoly on the instruments of coercion — and that would, eventually, through control of money and credit, put itself into the position of inserting itself into every aspect of life?

#30#

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