IMMORAL MAXIM #1: THE COVENANT SHORN

IMMORAL MAXIM #1: THE COVENANT SHORN

TOPIC #1. The Original Covenant: The Declaration of Independence and the Constitution of The United States.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed... ” [From The Declaration of Independence].

IMMORAL MAXIM #1.

“If you want aspirations, you can read the Declaration of Independence, with its pronouncement that “all men are created equal”... Or you can read the the French Declaration of the Rights of Man and the Citizen... There is no such philosophizing in our Constitution, which ... is a practical and pragmatic charter of government.” 1 [Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law]

Of course, the emphases of our Declaration of Independence and our Constitution are different. The Constitution is indeed a charter and it is loaded with specific stipulations intended to guide the workings of the then new government. However, to gainsay the broad reach of the Constitution’s language and reduce it to a mere compilation of rules, even abstract rules, which can be understood quite apart from the Declaration of Independence is to attack its very raison d’etre.2 Scalia allows that the Prologue is aspirational, but characterizes the rest of the Constitution, including the Bill of Rights, as a set of operational provisions that are best read as positive stipulations essentially devoid of indeterminative or incomplete meaning. With defenders of liberty like this there is no deed for us to worry about external threats to our Freedom.
Justice Scalia is an active member of the Roman Catholic Church. If Catholic Scalia were to say that Christians should obey the Ten Commandments and honor the Sermon on the Mount as literal prescription, while the stories of the Burning Bush and the Resurrection are in the Bible solely to inspire the faithful — his opinions would be rejected and scorned by his fellow believers. It is not that all Roman Catholics are committed to a literal, fundamentalist reading of the Bible; it is simply that any believing community — just like a political community — has a remembered history as well as a set of beliefs. There would be no Constitution if there had been no Declaration of Independence. The original Covenant of the Declaration of Independence provides an essential component of any legitimate perspective from which we interpret our original Charter, the United States Constitution. Scalia’s attempt to divorce the rules from its legitimizing Covenant of our still very imperfect Union is all-too-similar in Spirit to that damnable opinion penned by Roger Taney in Dred Scott who thought he could wield the entrenched facticity of slavery against the implications of the Declaration of Independence.


FOOTNOTES

[FOOTNOTE 1-1] Boldface in quotes at the beginning of each section, unless otherwise noted, are supplied by LCHj.

[FOOTNOTE 1-2] Scalia allows that the Prologue is aspirational, but characterizes the rest of the Constitution, including the Bill of Rights, as a set of operational provisions that are best read as positive stipulations essentially devoid of indeterminative or incomplete meaning.

CASES CITED
Dred Scott, 19 Howard 393 (1857)
Scott v. Sandford, 19 Howard 393 (1857)

BIBLIOGRAPHY
Scalia, Antonin (1997). A Matter of Interpretation: Federal Courts and the Law. [Amy Gutmann, Editor]. Princeton University Press: Princeton, NJ. 159 pages.