Alan Keyes Critiques Thomas’s Dissent in the Obergefell Case
“…sed magis amica veritas”
In the opening paragraph of his dissent from the majority in the U.S. Supreme Court’s Obergefell decision re homosexual marriage Justice Thomas says:
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty.
Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.
Each assertion in this paragraph is incorrect in some respect. Liberty was not understood simply as the “freedom from government action”. It was rather understood as the duty to institute government that secured the exercise of right, as endowed by God. The first human government is that of the household. The first duty of those responsible for the household (the parents) is to do right by its member by doing all such things as are necessary to engender, preserve and secure their lives and, as it fall within the parents’ actual power, their contentment or happiness.
In view of this first form of government Justice Thomas’s description of the founding generation’s understanding of liberty in respect of government appears problematic on its face, since no helpless child stands to benefit from parents foolish or wicked enough to act as if their child’s liberty is best secured by freedom from the action of their parental government.
Madison said that “if men were angels, no government would be necessary.” People usually think that the reference to angels has to do with their goodness, and they are right. But they must think further about the cause or occasion for that goodness, which lies in the character of good angels, who are emanations of God’s will, acting at His behest and information, interposing no different or contrary will of their own.
Those of the founding generation pretty universally accepted the view that human nature was informed by God in His own image and likeness, to include the absolute freedom from all resistance or constraint which must necessarily inhere in the singular being that is the absolute master of all that is.
For better and worse, the freedom thus included in human nature allows man to choose to be good, in conformity with God’s provision for human existence, or to choose to the contrary what rejects the information of God, and by superseding or transgressing the definitive bounds of human nature, disrupts and annihilates that nature.
Taking account of this freedom, Madison’s statement about the necessity of government is precisely about the need for government to act to constrain man’s tendency to reject the information which God provides for the good of humanity, individually and as a whole. So he says that the first challenge “in framing a government which is to be administered by men over men” is to ‘first enable the government to control the governed.”
This view of things utterly contradicts the notion that the chief or exclusive aim of the Constitution is freedom from government action. Because some people will not do right, others institute government in order, by doing right themselves, to secure what the others will not. After making this demonstrably inaccurate statement about the understanding of liberty which informs the Constitution, Justice Thomas alludes to “the idea–captured in our Declaration of Independence- that human dignity is innate.”
He rightly faults the majority opinion because it “suggests instead that it [dignity] comes from the Government.” But the idea plainly referred to in the Declaration is not the idea of innate human dignity or worth. It is the idea of God-endowed unalienable right. The word right refers to the quality of action in terms of what is just. God-endowed right refers to God as the standard or rule that substantiates this quality of justice, filling it with right content. Right is therefore action in accordance with God’s standard or rule of justice.
The word “unalienable” certainly suggests that this is an intrinsic quality, inseparable from human nature. This justifies Justice Thomas’s use of the word “innate”. But the notion that this innate inclination to act justly is synonymous with human worth is problematic.
For the term unalienable right evokes the presence of an innate and immediate sense of right, accompanied by an inclination to act accordingly. Both these innate dispositions are, in consequence of the human attribute of personal freedom (i.e., the freedom reflected into man by God’s aforementioned intention), subject to diverse possibilities of the human will. In terms of justice, whether the action that results is worthy of our humanity, or instead defames and degrades it, depends on the nature of the act.
What affirms the dignity (worth) of human nature is therefore the exercise of right, the decision to do what is right in conformity with the disposition instilled in us by God. But this makes God the ultimate judge or standard of human worth, a fact also affirmed in the Declaration of Independence which concludes by “appealing to the Supreme Judge of the World for the rectitude of our intentions.” Therefore, though the dignity each human being is disposed to assume is innately expressed, the source and measure of that dignity are not inwardly determined. They depend on the information and Judgment of God.
Justice Thomas justly faults the majority opinion because it “invokes our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect.” He says that their “distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.” But Justice Thomas himself invokes the name of a “liberty” the Founders rejected (freedom from government action) to the detriment of the endowment of unalienable right they risked all to respect and secure.
By doing so he neglects the relationship between human individuals and God’s government, which is the basis for the authority by which the people ordain and establish human government over themselves. He also obscures the fact that, by suggesting that right and rights are a fabrication of human government power (be it judicial or otherwise), the majority opinion usurps the government of “the laws of nature and of Nature’s God”, to which all human government must look for ultimate authority and judgment.
This is the relationship cast aside by the majority’s opinion, but also cast into the shadows by the tacit obscurantism of the dissenters from that opinion, none of whom accurately, or truthfully, or courageously set forth and rely upon the God-acknowledging principles, essential to its logic, as they are actually stated in the Declaration.[Conclusion of this essay, available to BW readers on my blog]
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