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?
