‘In the mold of Scalia’ doesn’t preserve God-endowed rights
The error of those who reason by precedents drawn from antiquity, respecting the rights of man, is that they do not go far enough into antiquity. They do not go the whole way. They stop in some intermediate stages of an hundred or a thousand years, and produce what was then done, as a rule for the present day. …but if we proceed on, we shall at last come out right; we shall come to the time when man came from the hand of his Maker. …
If the mere name of antiquity is to govern in the affairs of life, the people who are to live an hundred years hence, may as well take us for a precedent, as we make a precedent of those who lived an hundred or a thousand years ago. The fact is, that portions of antiquity, by proving everything, establish nothing. It is authority against authority all the way, till we come to the divine origin of the rights of man at the creation. (Thomas Paine, The Rights of Man, Part I)
This weekend I read an article with the headline “Winning gay battles may come at incredible cost – the Supreme Court”. The author argues that, thanks to Donald Trump’s victory in the presidential election, the gay activists will end up losing their majority on the Supreme Court. He further argues that this is the result of the margin of victory Mr. Trump obtained from evangelical Christians, riled because they are bearing the brunt of the persecution being waged against Christians by gay activist groups. This argument assumes of course that Donald Trump will replace Justice Antonin Scalia with someone who rejects the Court’s jurisprudence on the issue of gay marriage.
Conservatives accept this assumption despite the fact that Mr. Trump has repeatedly reiterated his determination to nominate someone who is “in the mold of Scalia”. But, as I observed in an article published at the time of his death, Justice Scalia believed that issues such as homosexual marriage, are a matter of “democratic right”. He suggested that “if it is to change it should change democratically, not at the ukase of a Supreme Court.”
So when Justice Scalia addressed the issue of right, he argued for accepting the meaning and intent of America’s Founders unless and until, by democratic means, the people decide to change it. But what if the people refuse to change, as they did for several hundred years when it came to the issue of slavery? Thomas Paine argued unequivocally that the ultimate authority in matters of right and wrong was the authority of the Maker, the Creator. His compatriots in the American Revolution took the same view in the American Declaration of Independence.
It is therefore fair to conclude that the Founders of the United States did not regard democratic rule as the ultimate authority in deciding matters of right and wrong. Obviously, this was also not the view taken by Abraham Lincoln and all those who responded to his understanding of the cause of the union during the Civil War. It was the view of Susan B Anthony and Martin Luther King, as they also appealed to the transcendent authority of the Creator to enlist support in their battles for the unalienable rights of women and black Americans respectively.
Thus, neither America’s founders nor the best and greatest champions of unalienable rights in American history relied on majority rule as the ultimate authority for justice. Put simply, the original intent of the founders was to respect the intention of God for His creation. It was emphatically not to respect the will of any individual or group of individuals acting to violate unalienable rights endowed by the Creator. But issues like “gay marriage” involve the primordial belongings of humanity, those defined by the natural bond between us and our posterity. These ties obviously depend on God’s endowment of human nature.
On account of that endowment, men and women have a natural obligation toward their posterity. From this they derive the authority to make conscientious decisions in pursuance thereof. Like the preservation of individual human life, the natural obligation to preserve the life of the species is self-evidently a right endowed by the Creator. It is therefore, among the unalienable rights, governments are instituted to secure.
When the sovereign of Great Britain violated their God endowed unalienable rights, American Patriots stood firmly in defense of those rights, even at the risk of a bloody and damaging war. Because slavery violated the unalienable rights of the enslaved, supporters of the union stood firmly in defense of those rights, even though it meant enduring the terrible vicissitudes of civil war. Thanks to Lincoln’s principled statesmanship the outcome of the Civil War enshrined the logi of unalienable rights, endowed by our Creator. That logic represented the common ground of America’s Founding. Anointed in the blood shed during the war, it was finally, (and it seemed, perpetually) seated as the moral basis of the just authority for government in the United States, commanding at last the unified allegiance of the American people.
But with decisions like Roe v. Wade on abortion and Obergefell on gay marriage, the U.S. Supreme Court has again unfixed the foundation of our self-government, placing our common allegiance in doubt, along with the union derived from it. Just as Lincoln’s statesmanship had to revisit and apply the America’s Founding logic of unalienable rights to the issue of slavery in his day, so anyone who truly wishes to conserve the Constitution based upon them must do the same in our time. Because he refused to apply the understanding of law derived from the doctrine of natural right endowed by God, Justice Scalia’s advocacy of original intent was indistinguishable from the appeals to tradition America’s Founders weighed and found wanting.
The only rationally persuasive argument that permits us to examine and reject claims of fundamental right is the one the Founders made, appealing to the ultimate authority of the Creator, God. Invoking the will of the majority, without regard to any such transcendent basis for right, simply substitutes one form of tyranny for another. For, whether inflicted in the name of the many or the few, rule without regard to right deserves no other name.
Therefore, the promise to appoint a justice “in the mold of Scalia”, misses the mark. For if the people of the United States give in to an understanding of justice that surrenders their appeal to God, what appears to be an assault on the individual lives of our posterity, or the conscience and faith of our religious and family lives, will inevitably prove to be a general and fatal assault on justice, right and liberty for all—the pillars without which our constitutional self-government cannot stand. We must demand better than this, or endure the shame of being the generation in which it utterly fails.
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