In declaring their independence from the British people, “the Representatives of the united States of America” acted “in the Name, and by Authority of the good People of these Colonies.” The “United Colonies are, and of Right ought to be, Free and Independent States.” Plural, not singular. But also united: As one of Mr. Shakespeare’s characters says, there’s the rub. The American States are independent respecting Great Britain. But are they free and independent respecting one another? And if so, to what extent? “As Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Thing which independent States may of right do,” but may they do these things severally, without regard to each other, or only as united body? What is the character of the American Union?

Notoriously, Abraham Lincoln and Jefferson Davis would find themselves in disagreement over this matter. But in the generation between the founding and the Civil War, a slaveholding Southern democrat, and Democrat, delivered a cogent analysis of America’s constitutional Union, promising to enforce the terms of that Union as he understood them. No one doubted that he would; Andrew Jackson was not a man to be crossed.

In 1828, Congress enacted a tariff law, one so sharply resented by that South Carolinians, led by John C. Calhoun, called it “the Tariff of Abominations.” Calhoun resigned from the vice presidency and entered the Senate to fight the tariff. By the early 1830s, South Carolina handed Jackson a serious constitutional crisis.

Jackson was far from an enemy of States’ rights. In his First Inaugural Address of March 1829 he had announced that “In such measures as I may be called on to pursue in regard to the rights of the separate States I hope to be animated by a proper respect for those sovereign members of our Union, taking care not to confound the power they have reserved to themselves with those they have granted to the Confederacy”—that is, the federal government. This wording suggests that Jackson took the act of ratifying the Constitution to have been a grant of powers by the state governments, not by the American people acting state-by-state, as the principal Framers had maintained.

Nine months later, in his First Annual Message, Jackson praised the Framers’ design, which consisted of a federal government with “limited and specific, not general, powers”; “it is our duty,” he continued, “to preserve for it the character intended by its framers.” “We are responsible to our country and to the glorious cause of self-government for the preservation of so great a good.” This being so, “the great mass of legislation relating to our internal affairs was intended to be left where the Federal Convention found it—in the State governments.” He warned Congress “against all encroachments upon the legitimate sphere of State sovereignty.”

Nullification of duly enacted federal laws was another matter, however. Jackson neither stated nor implied that that fell within the legitimate sphere of State sovereignty. As early as the Jefferson Day Dinner of April 1830, Jackson fixed Calhoun with his formidable stare and toasted “Our Federal Union—it must be preserved.” The warning went unheeded; indeed, the nullification movement spread to other Southern states. On November 1, 1832, South Carolina solemnly nullified the tariff law, threatening to secede from the Union if the federal government moved to enforce it. South Carolina, the state legislators intoned, “will forthwith proceed to organize a separate government and to do all other acts and things which sovereign and independent states may of right do”—thus echoing the language of the Declaration of Independence without noticing its underlying principle of unalienable natural rights.

In his Fourth Annual Message of December 1832, by which time he had been duly elected to a second term in office, Jackson reported that “in one quarter of the United States opposition to the revenue laws has arisen to a height which threatens to thwart their execution, if not to endanger the integrity of the Union.” He followed this a few days later with a proclamation refuting Southern pretensions. To claim a constitutional right to nullify federal laws is unconstitutional: “coupled with the uncontrolled right to decide what laws deserve that character, [it] is to give the power of resisting all laws; for as by the theory there is no appeal, the reasons alleged by the State, good or bad, must prevail.” But the Constitution, the supreme law of the land, provides only two appeals from allegedly unconstitutional federal laws: judicial review and constitutional amendment. If the South Carolina doctrine “had been established at an earlier day, the Union would have been dissolved in its infancy.”

Jackson then reviewed the history of the American Union as defined and refined during the Founding period. The Union, he observed, predates not only the Constitution but the Declaration of Independence. In October 1774, the First Continental Congress met in Philadelphia in response to legislation enacted by the British parliament and king. After the Boston Tea Party, Britain aimed to punish Massachusetts by curtailing citizens’ rights—suspending the right to jury trials, among other measures. Calling these the “Intolerable Acts,” the delegates set down the Articles of Association, boycotting British imports (including slaves) and suspending American exports to England. To reinforce these proposals, Congress recommended sumptuary restrictions: no “shows, play, and other expensive diversions and entertainments,” including horse races and cock fights. These curtailments of consumption would back the restrictions on trade. Congress further proposed the formation of local committees to expose violations of these policies—effectively enforcement by shaming. In Jackson’s words, “they agreed that they would collectively form one nation for the purpose of conducting some certain domestic concerns and all foreign relations.”

Still, the Articles of Association amounted to a treaty among the colonies, not a government. Two years later, the Declaration of Independence anticipated redefining the Union on governmental lines. Describing Americans as “one people,” the Signers announced that the United States were ready “to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them.” All independent peoples are entitled to such a “station” or status because “all Men are created equal”—”endowed by their Creator with certain unalienable Rights,” among which number “Life, Liberty, and the Pursuit of Happiness.” If a group of such equal persons consent to a government that does what governments rightly do—aiming to secure those rights—then they deserve diplomatic recognition from other peoples so organized. Conversely, governments that fail to secure those rights forfeit popular consent. The long list of grievances against the British king and parliament that follows provides a sort of photographic negative of justly used governmental powers. These include the power of declaring war, settling peace, enacting domestic legislation, and governing under law with an independent judiciary. The abuse of those powers by the British government rightly led to disunion; union, by implication, requires their proper use within the framework of the Laws of Nature and of Nature’s God by the consent of the people.

After vindicating their claim of independence on the battlefield (Jackson had been one of the militiamen, at the age of thirteen), the Americans further defined the terms of the Union with their first constitution, the Articles of Confederation. In Jackson’s words, the states thereby pledged to “abide by the determination s of Congress on all question which by that Confederation should be submitted to them,” with no state entitled to “legally annul a decision for the Congress or refuse to submit in its execution,” although the Articles provided no means of enforcing this provision. Inasmuch as the 1787 Constitution formed “‘a more perfect Union’ than that of the Confederation,” how could that law permit the Union to backslide beyond even the unenforceable Union enacted under the Articles?

“I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” More, “this right to secede”—which Jackson clear-sightedly perceived as inherent in the assertion of the sovereign right to annul—”is deduced [by the nullifiers] from the nature of the Constitution, which, they say, is a compact between sovereign States who have preserved their whole sovereignty and therefore are subject to no superior.” But Jackson correctly identifies the American people as the sovereigns, not the state or federal governments, and under the Constitution the executive is charged with enforcing federal law. “The Constitution of the United States… forms a government, not a league; and whether it be formed by compact between the States or in any other manner, its character is the same.” That government “operates on the people individually, not upon the States,” as it had under the Articles.

“It is the acknowledged attribute of free institutions that under them the empire of reason and law is substituted for the power of the sword.” As argued in the Declaration of Independence (and earlier by John Locke and other natural-rights philosophers), it “needs not on the present occasion be denied” that “a State or any other great portion of the people, suffering under long and intolerable oppression and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations to the Government and appeal to the last resort,” namely, the force of arms. The right to revolution under such circumstances is a right not only of Americans but “a right of mankind.” “It is not the right of the State, but of the individual, and of all the individuals in the State.” “Like any other revolutionary act,” secession “may be morally justified by the extremity of the oppression; but to call it a constitutional right is confounding the meaning of terms,” inasmuch as “a compact is an agreement or binding obligation.” If that compact “contains no sanction, it may be broken with no other consequence than moral guilt,” as a league among independent nations might be broken; “a government, on the contrary, always has a sanction, express or implied, and in our case it is both necessarily implied and expressly given” in the provision made “for punishing acts which obstruct the due administration of its laws.” The name for “an offense against sovereignty” is treason. Jackson charges that the nullifiers’ “object is disunion…. Disunion by armed force is treason,” and Jackson leaves no doubt that he will use his executive power as president of the United States to punish its perpetrators accordingly. Thus Jackson clearly defines popular sovereignty not as a principle justifying the political superiority of the States over the federal government (as nullifiers and secessionists did), nor as a principle justifying might-makes-right majority rule of the people over the states (as Stephen Douglas would later do), but as an instrument justified only by its adherence to the standard of natural rights. The sovereign people have divided their sovereignty between the States and he general government; accordingly, States’ sovereignty and States’ rights are limited to those objects the united people did not assign to the federal government; the federal government, for its part, is limited to the powers enumerated by the Constitution and ratified by the people. “It is not for territory or state power that our Revolutionary fathers took up arms; it was for individual liberty and the right of self-government.”

In a letter to Congress in January 1833, Jackson warned that “if these measures can not be defeated and overcome by the power conferred by the Constitution on the Federal Government, the Constitution must be considered as incompetent to its own defense, the supremacy of the laws is at an end, and the rights and liberties of the citizens can no longer receive protection from the Government of the Union.” With no major source of revenue other than the tariff, the federal government itself would shrivel and collapse and the states would take over the rule of the people resident within them. Citing the Constitutional obligation of the Executive to “take care that the laws be faithfully executed,” Jackson signed the “Force Bill” on March 3, 1833, the day before his Second Inaugural Address. In the words of his most recent biographer, Bradley S. Birzer, he then “called up militias, ordered three divisions of artillery to South Carolina, gave General Winfield Scott command over Charleston Harbor, ordered the reinforcement of Charleston’s federal forts, and placed naval warships just offshore.” In the Address, he wrote that “The eye of all nations is fixed on our Republic. The event of the existing crisis will be decisive in the opinion of mankind of the practicability of our federal system of government.” Taking notice, South Carolina backed down.

By the time of his Farewell Address four years later, Jackson could assert with confidence, “Our Constitution is no longer a doubtful instrument, and at the end of nearly a half century we find that it has preserved unimpaired the liberties of the people, secured the rights of property, and that our country has improved and is flourishing beyond any former example in the history of nations.” He nonetheless warned, “We behold systematic efforts publicly made to sow the seed of discord between different parts of the United States and to place party divisions directly upon geographical distinction; to excite the South against the North and the North against the South, and to force into controversy the most delicate and exciting topics—topics upon which it is impossible that a large portion of the Union can ever speak without strong emotion.” Jackson does not deny the wrong of slavery, only affirming that the consequences of disunion would be worse, reintroducing the likelihood of international war to North America without liberating the slaves. Recalling the Farewell Address of his most distinguished predecessor, he asked, “Has the warning voice of Washington been forgotten, or have designs already been formed to sever the Union?”

 

 

 

Having founded republican regimes in America, regimes animated by respect for the laws of Nature and of Nature’s God as enunciated in the Declaration of Independence from the British monarchy, he Founders remained vexed at the confederal form of the American state—the relations among the several states in the confederation and the relationship between the weak federal government and those states, relationships framed in the Articles of Confederation. True to its title, The Federalist centrally addresses this question—literally so. James Madison, scribe of the Constitutional Convention and one of the principal designers of the new Constitution itself, wrote the forty-third or central number of the collection, as well as the six preceding essays and the fifteen subsequent. The core of the book belongs to him, and his topic throughout the series is the character of American federalism as the new Constitution would constitute it.

Madison begins by identifying the need to balance governmental energy with stability, both in defense of liberty—a natural right—and “the republican form”—the regime which emanates from that right. Liberty and the regime of liberty require energy for self-defense and for execution of the laws enacted by the regime; liberty and republicanism also require stability in order to establish the “national character” and to fortify the confidence of the people in their new regime. “The task of marking the proper line of partition between the authority of the general and that of the State governments” proved arduous, given the rightful jealousy of the citizens of each state as they guarded their right and power to govern themselves, a jealousy that nonetheless needed to be balanced by considerations of public safety and economic prosperity, threatened by factionalism within and among the states under the Articles of Confederation. Natural rights are one thing, but they can never be secured without due consideration of “the infirmities and depravities of the human character,” evils that undermined popular governments no less than monarchies and oligarchies.

Madison assures his readers that the form of the “general” or federal government remains “strictly republican.” “No other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.” Such a government will derive “all its powers directly or indirectly from the great body of the people,” not “from an inconsiderable proportion of a favored class of it.” Each of the three branches of the newly-designed federal government does indeed meet that criterion; they all pass the ‘regime’ test.

But what about the ‘state’ test? Does the federal government possess the needed energy, the requisite power, truly to govern? Without a strong federal union, America will become another Europe, full of small and medium-sized states armed against one another, their liberties “crushed between standing armies and perpetual taxes,” their prosperity shackled by high tariff walls. At the same time, does its structure limit but also focus that energy in a way that does not consolidate the states into one amorphous mass, compromising the rights of citizens to govern their own lives as they really live them—in town and countries within states? Self-governing citizens must never be reduced to being mere spectators, gazing at the actions of ‘statesmen’ far above and beyond their own control.

After reaffirming, in the central, forty-third Federalist, “the great principle of self-preservation” and “the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim,” Madison turns to the restrictions of the authorities of the American states delineated by the new Constitution—restrictions imposed precisely because those states had failed adequately to secure the natural rights identified in the Declaration of Independence and vindicated in the war for independence and the revolution the war advanced. Among other things, the states shall not enter into treaties, coin money, impair the obligation of contracts, or grant titles of nobility (thereby changing themselves into aristocracies). But would these restrictions weaken the states too much? Of particular concern to critics were the Constitution’s clauses granting the federal government the power “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers to set foreign and domestic policies for the American government as a whole, and the designation of the laws enacted by those powers as “the supreme law of the land.”

There is no way of defining one’s way out of that concern. What are “necessary and proper” laws? And if the “supreme law of the land” isn’t lodged in the general government, where would it be lodged, if not in the states, which had misused their supremacy? In Federalist #45 Madison writes, “Were the plan of the [Constitutional] convention adverse to the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, let the former be sacrificed to the latter.”

Madison then shows how the Framers solved the problem. Although the States were indeed stripped of their sovereign powers—treaty-making, coinage, regime change, and so on—nonetheless they would form “constituent and essential parts” of that government. By establishing the Electoral College, the Framers required state-by-state election of presidents; each voting district for the House of Representatives remained entirely within the boundaries of a state, with no interstate districts; and the United States senators would be elected by state legislatures, with each state sending two senators, regardless of its size.

Further, the administrative or bureaucratic side of government would favor the states. There would be far more state employees than federal employees. This remains true to this day, even with the vastly expanded federal bureaucracy now in place, although of course it is less true than it was in the first 150 years of American constitutional government. The causes of that shift of power have everything to do with the partial abandonment of our constitutional scruples, beginning in the twentieth century, rather than to the Constitution itself.

Fundamentally, “the powers delegated by the proposed Constitution to the federal government are few and defined,” whereas “those which are to remain in the State governments are numerous and indefinite.” Moreover, the federal government’s powers largely concern external matters; the day-to-day concerns of most citizens—their “lives, liberties, and properties”—will continue to find redress from the local, county, and state governments.

As Madison tough-mindedly remarks in a subsequent paper, the new Constitution puts the states to the test. If the sovereign American people “should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.” The stronger federal government set down in the new Constitution will inaugurate a kind of competition in good government, breaking the states’ monopolies.

In all this, as Madison writes in the forty-ninth Federalist, the Framers have structured the new federal government and the American system of governments overall in such a way as to secure natural rights while minimizing the infirmities and depravities of the human nature all persons share. Not the passions but the reason of the American public should “sit in judgment” of the government: “It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so here are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities to a higher degree than any other form,” and so does federalism, rightly understood. If such were not the case, “the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”

Paul R. DeHart: Uncovering the Constitution’s Moral Design. Columbia: University of Missouri Press, 2007.

 

Note: I am grateful to Robert R. Reilly, Senior Fellow at the American Foreign Policy Council, for drawing my attention to this book.

 

To uncover the Constitution’s moral design, most scholars examine the writings and speeches of its Framers, especially those available in the records of the Constitutional Convention and in the ratification debates. Some also consult the pre-Constitutional documents issued by the United States, foremost among them the Declaration of Independence, but also the Northwest Ordinance and other major state papers classified as ‘organic laws’ of the United States. Some might also look to early Supreme Court decisions for clarification on certain points, and to post-Constitutional presidential papers and debates in Congress.

DeHart takes a different approach. Somewhat along the lines of the post-World-War-II New Critics in literature departments, he observes that any text has an integrity of its own, apart from the intentions of its author or authors; by ‘design’ he means the structure of the document, not ‘design’ as ‘intent.’ If I intend to say, ‘The sky is blue’ but mistakenly type ‘The sky is not blue,’ the meaning of the sentence I have typed is the opposite of my intention. It is nonetheless the meaning of the sentence I have typed, and any lawyer, including a constitutional lawyer, would take due note of that. The New Critics maintained that whatever John Keats’s intention may have been, “Ode on a Grecian Urn” means something that can only be discovered first by looking at the words he put on the page. Other elaborations may follow, but that is the indispensable first step. As DeHart puts it, “The writings of the key framers cannot serve as a proxy for the Constitution.”

Unlike the New Critics, DeHart is also a logician. To uncover the Constitution’s moral design, and indeed tp determine if it has one, he compares what it says to several familiar moral doctrines, including Aristotelianism, Hobbesianism, Kantianism, positivism, and nihilism. When he finds that a given moral doctrine contradicts some important clause or clauses of the Constitution, he rules it out as the source of that design. “General categories as classical, modern, or positivist bundle together logically discrete propositions concerning sovereignty, the common good, natural law, and natural rights”; therefore, such propositions are open to confirmation or refutation as elements of the Constitutional framework, the institutional structure it ordains. “We must turn our attention to uncovering that framework by analyzing the logic of and assumptions underlying the practical, institutional arrangements put into place by the Constitution.” In this he follows the lead of no less a constitutionalist than James Madison, who distinguished what he called the “true meaning” of the Constitution from “whatever might have been the opinions entertained in forming the Constitution.” This, Madison went on to say, included the Constitutional debates, which he recorded, and The Federalist, which he helped to write. Madison did not deny the value of such extraconstitutional writings in clarifying points in the Constitution, only that such writings closed cases.

More, DeHart undertakes not only a scholarly exercise but an exercise in moral philosophy. “The overriding question is this: Is the Constitution’s normative framework philosophically sound?” Is “the Constitution’s assumption about the common good,” once identified, “in fact good”?

There are some merits in this approach. For example, scholars have found antecedents of the Constitution in texts ranging from Genesis to The Spirit of the Laws. God and Montesquieu are not to be confused. Does this make the Constitution incoherent? No: “It remains possible to draw on incompatible thinkers in ways consistent with a particular normative framework.” Indeed, “the framers did not tell us how they drew on various thinkers”; “it is logically possible that the Constitution is partly modern and partly classical.” Research into their writings “will not provide us with a determinative answer concerning the Constitution’s normative framework.” Or, as Hamilton put it, “Nothing is more common than for laws to express and effect more or less than was intended.”

By “the Constitution” DeHart means not only “writing on parchment” but what the Constitution constitutes: the “practical institutional arrangement” of the United States government, what the Greeks called the politeia or form of the American national government. The politeia in turn influences, and is influenced by, “the incentive patterns” of citizens who live under the governmental form, the Bios ti or way of life of the American people, and especially of those who undertake to govern. “On this understanding, the Constitution also includes the normative framework that is presupposed by its particular institutional arrangements,” its telos or purpose. Readers of Aristotle will recognize all these as elements of what he calls the regime of a political community. In considering the moral design of the American regime as seen in the United States Constitution, DeHart considers four main topics: sovereignty, the common good, natural laws, and natural rights.

DeHart gets down to particulars, discussing Madison’s accounts of the controversy over whether presidents had the power to remove officers appointed with the Senate’s advice and consent, a point nowhere explicitly addressed in the Constitution.  In addressing he issue, “Madison exhibits the sort of reasoning I have in mind.” He begins by observing what he calls “a principle that pervades the whole system,” namely that there should be “the highest possible degree of responsibility in all the executive officers thereof.” Executive officers therefore should be responsible to the chief executive officer, the president; this in turn will make the president directly responsible to the American people for “the conduct of the person he has nominated and appointed.” DeHart glosses Madison by calling this argument a specimen of “reasoning in terms of the institutional structure of the Constitution.” He finds “beneath the surface of Madison’s reasoning… an application of the law of noncontradiction,” inasmuch as to make the president’s removal power contingent on Senate approval would render executive power, and therefore executive responsibility, “virtually nonexistent.” On the larger point, Madison compares the principle of executive action under the Constitution (responsibility) to a particular action (the removal of an officeholder) and finds that the action in question logically coheres with the principle—more so than it does with the legislative and advise-and-consent powers of the Senate.

Plato illustrates this more generally in his analysis of “proper function”: “the proper function of a thing, Q, is that work which only Q does or that which Q does better than anything else.” Additionally, to perform its proper function Q must be in good condition; “a dull pruning knife will not even succeed in cutting a vine where a sharp dagger will.” “Plato’s rule for discerning the work appropriate to a thing, its purpose, has nothing to do with the intentions of a designer.” The designer of the object we identify as a pruning knife may or may not have designed it for pruning. We infer its function from its design. Returning to the Constitution, DeHart proposes to compare several moral theories with the Constitution, determining how many points in each theory contradict the structure of the Constitution; he will then “try to figure out which moral assumption” in each theory “explains or is consistent with the most constitutional features and which assumption requires the least auxiliary hypotheses in the course of providing an explanation.” Finally, at the “teleological level” of explanation, he will determine not only whether a given moral assumption is “the best fit” with Constitution, but whether it is a sound moral assumption. This final step will answer his “overriding question” as to the moral soundness of the Constitution itself. If a given moral theory both fits the Constitutional structure and proves philosophically sound, then the Constitution is good.

The first of the four topics DeHart addresses is sovereignty, “the right to determine what shall or shall not be law by giving consent to what will or to what has already gone into effect.” In classical ‘regime’ terms, sovereignty belongs to a person or persons, the “ruling body” or politeuma. The Constitution “presumes the sovereign to be both popular and constrained.” Whether or not it is popularly constrained, the sovereign may delegate its powers to others (as, for example, between the national government and the government of provinces) because “the exercise” of sovereign power “is not essential to sovereign power”; “it is enough for the sovereign to be able to weigh in on how these functions are performed,” reserving the “final determining power” to itself, should it “decide to exercise it.” DeHart adds that sovereign power could be given away. Therefore, the fact that “We the People” have ordained the Constitution of the United States doesn’t prove that we have retained sovereignty, now that the Constitution is operating. To assume so would be to commit what logicians call the ‘genetic fallacy’—that the origin of a thing constitutes that thing, simply and entirely.

DeHart finds three main possible explanations of sovereignty under the Constitution. Positivists claim that “the people retain an unconstrained sovereignty,” authorizing “officials and institutions to carry out their will.” Modernists claim that the Constitution “presupposes that the people transfer sovereignty from themselves to the authority they establish,” making the government sovereign, no longer the people. Classicists claim that the Constitution “presupposes a sovereign constrained by the dictates of justice, whether this sovereign be popular, mixed, etc.” The Declaration of Independence clearly states what DeHart calls the classical view, laying down as major premises of its argument that human beings are endowed by their Creator with certain unalienable rights, rightly secured by governments. But DeHart must find evidence for this in the Constitution itself. Given the Constitution’s substantial powers to govern the American people, “they are a greatly constrained sovereign,” a collection of citizens who “cannot get what they want, right when they want it.” Although “all governmental authority traces back to the will of the whole people,” either directly or indirectly—thus establishing popular sovereignty—the people must exercise that sovereignty under certain self-imposed constraints. Their “long-term will” may prevail, but to prefer the long-term will of the people to their short-term will strongly suggests that there must be some criterion whereby long-term popular will is preferable to short-term will. This doesn’t tell us (as the Declaration does) what that criterion is. To put it in terms of a major Constitutional controversy, it doesn’t tell us that Lincoln was right about the character of the moral lights Senator Douglas was blowing out when he argued for unlimited popular sovereignty; it does tell us Douglas was wrong.

What, then, does the Constitution tell us about the common good, about justice? Positivists deny the existence of any “objective common good.” Obligation “derives from the command of the sovereign,” period. Modernists (beginning with Hobbes) say that the common good is peace. Classicists say that the Constitution includes peace, self-preservation, but also “includes all the dimensions of human well-being and rightly ordered relationships.” He then adds another possibly relevant moral theory, elaborated by Kant, who distinguishes both the classical and the modern teleological accounts of a real common good from “deontic” accounts. Kant locates morality not in the fulfillment of some end or purpose but in the sincere attempt to enact some a prior principle (for Kant, the categorical imperative)—not so much a good end but a good will.

DeHart rejects Kantianism. “We cannot, by recourse to the will, determine whether any particular exercises of the will are good or bad.” He prefers classical teleology, whose proponents argue that “human well-being” or goodness “is composed first and foremost of a rightly ordered soul—a soul in which reason governs the appetites through the passions (or the spirited part)” of the soul. “This is true because the human function, or work, is to live according to reason,” which is as much the distinctive quality or virtue of the human soul as a cutting edge is the distinctive quality or virtue of a knife. The full exercise of reason requires the exercise of other virtues, including “courage, friendliness, generosity, and prudence,” along with moderation and courage.

Unlike positivists, the Constitution does not deny the existence of an objective common good. Nor does it encourage the undiscriminating expression of human desires; indeed, it discourages such expression. Nor is there anything in the Constitution that indicates support for Kantianism, given the Constitution’s obviously purpose-driven structure (to say nothing of its Preamble, wherein the purposes of that structure are clearly spelled out). With respect to modernist or ‘thin’ teleology, which holds that the Constitution aims only at peace or self-preservation, the Constitution’s structure provides for more than civil peace alone. By delaying decisions, by discouraging impulsive acts, the Constitution valorizes reason over passions and appetites. “Passion is a passing thing. Unjust factions animated by passion do not endure for long. If the lawmaking process is a slow one in which laws are repeatedly brought under reexamination, passionately driven factions will likely dissipate before their demands can be met.” Therefore, the Constitution “should be understood as an institutional structure that takes the governance of the political community by reason for its goal.” As DeHart knows, this is exactly what Madison said it was.

If the Constitution encourages the rule of reason, what is reason ruled by? Logically, it is ruled by the principle of noncontradiction. But noncontradiction is a means to an end. What standard does reason discover, when it functions according to its nature, when we think non-contradictorily? DeHart maintains that “the Constitution presupposes a view of natural law in which the requirements of that law are known through noninstrumental, or substantive, reason.” “It is essentially Thomistic or Aristotelian”—presumably more Thomistic than Aristotelian, as Aristotle doesn’t make nearly as much of natural law as Thomas does, centering his ethics on natural right, which gives more play to the importance of circumstances in making moral choices. The emphasis on natural law instead of natural right may derive from the advent of Christianity between Aristotle’s life and Thomas’s. Be this as it may, although the common good provides the content of the natural law, law itself is a type of command. “The natural law adds prescription to the common good, telling us that we are obliged to pursue good and avoid evil.” He quotes the Catholic moral philosopher Knud Haakonssen, himself following Suarez, who writes that “the natural law… reflects the two inseparable sides of God’s nature, namely his rational judgment of good and evil and his will prescribing the appropriate behavior.”

DeHart distinguishes natural law theory from theories grounded on the ‘moral sense,’ closely associated with theories grounded on ‘moral sentiments.’ In such theories, moral premises “are underivable by reason.” Some of these theories are more ‘sentimental’ or emotion-based than others. Those that define principles derived from the moral sense as effectively the first principles of practical reason are hard to distinguish from Thomists, who give a careful account of synderesis or conscience as the faculty of moral perception. Those who derive such principles from emotions tend to involve themselves in circular reasoning: If morality derives from emotions, but not all emotions are moral, how do the emotions know which sentiments are moral and which are not, other than by claiming that some sentiments make us feel as if we are good? By contrast, Thomas’s noninstrumental reason proceeds “via consideration of the objects to which the natural inclinations point”; by “inclinations” Thomas means “not ‘desire’ or ‘preference’ but rather the aim or goal (i.e., the disposition) of the design plan of human nature.” Noninstrumental moral reason looks at the nature of a human being and wants to know what is good for this kind of being. Moral actions will conduce to that good, which is really a constellation of goods.

Turning to the Constitution, DeHart that it “can’t presuppose” that the standard of morality “is known by emotion” because its design favors (at the very least) long-term emotions” over “immediate ones.” The standard for such a preference cannot itself be an emotion, as that would entail circularity. As seen in the Constitution itself, and in Madison’s writings, the Constitution favors the rule of reason, not sentiment.

If so, why does the Constitution countenance the kind of slavery that is based upon race, not at all upon reason? Because “the slavery provisions taken together can be understood as allowing slavery, in order to secure ratification of the Constitution by slave states, while providing constitutional means to work for its eventual elimination.” And of course the Constitution itself has banned slavery since the Civil War amendments were added. “To end slavery, Union was necessary; to form the Union, providing for the protection of slavery for the time being was necessary.” In sum, “a noninstrumentalist account of natural law fits with the Constitution in that the Constitution promotes the rule of reason over desire and sentiment, presumes, at a minimum, widespread moral knowledge, and seems to fit with the classical natural law account of the relationship between natural law and human law.”

Where does this leave the doctrine of natural rights, as enunciated most prominently in the Declaration of Independence? DeHart argues that natural-law theory doesn’t deny the existence of natural rights but asserts the priority of natural law (and thus of duties) over natural rights. He regards the claim that natural rights precede natural law as modern, although of course both precede conventional or humanly-willed law, which should indeed secure natural rights, as the Declaration says. “The Constitution presupposes that natural law precedes natural rights and grants to natural rights what obliging force they have.” As G. E. M. Anscombe maintains, rights can only be justified by positing the existence of certain “necessary tasks.” By this she means that “if one has a right to perform a (morally) necessary task, one also has a right to the means of performing that task.” To prevent me from performing that task is to violate my right. A “necessary task” imposes a “stopping cannot” upon anyone who considers any such prevention. “A natural right is a ‘stopping cannot’ with a logos protecting a ‘can’ that a person possesses in virtue of human nature. That is, if N has a natural right to do Z, then something about N’s nature as a human being morally enables N to do Z and morally restricts others (whether individuals or the government) from preventing N from doing Z.”

If one maintains, with Hobbes, that natural rights precede natural law, then the law of nature is “instrumental or conditional, telling people [in Hobbes’s central claim] that if they want peace, then they must surrender this right (insofar as others are willing to surrender it too).” That is, in the state of nature, which Hobbes calls a war of all against all, I and many others may decide that our natural right to self-preservation would be better served by making the rational choice to transfer our right to defend ourselves to the government we constitute for that purpose. And, Hobbes adds, that government must be sovereign, absolutely so, “unconstrained in any way”—a “‘can’ with no ‘stopping cannots.'” There can also be a variant of this, whereby the rights that dictate natural law shall not be contradicted by any individual or governmental act. “The Declaration [of Independence] says that the Creator endowed man with inalienable rights,” “imparting to his human creations an inviolable value sewn into the fabric of their beings.” Whatever John Locke may have thought of the Creator-God, he also may take governmental actions to be limited by prior natural rights, particularly the right to self-ownership.

On this last point, DeHart prefers to enlist Locke on the natural-law and indeed theistic side of the debate, arguing that to say, as Locke does, that “human persons are God’s property, subject to duties [God] imposes upon them,” but they are also self-owners in the sense that they own themselves as trustees of God so long as they enjoy the gift of life from God. DeHart also cites Madison’s Memorial and Remonstrance against Religious Assessments: the religious right to follow one’s conscience is a right I hold against other men, but with respect to God it is my duty. Be these scholarly interpretations as they may, the Constitution aligns with the priority of natural law, “plac[ing] constraints upon the will of the popular sovereign precluding the people from doing whatever they want in this matter.”

But what about the Declaration’s stance, which at least may be construed to be that rights are prior to natural law? DeHart rejects it. “It is difficult… to see how natural law (or how obligation) can be generated by natural rights.” Taking property rights as his example, he asks, “Why should the fact that N has property in a thing or an act entail anything about what others are obliged to do with respect to N? There is a huge gaping hole left by a messing premise in the move from N’s property to everyone else’s mysteriously generated obligation to respect N’s property. In fact, the obligation of others to respect N’s property doesn’t exist unless there is first a rule or law such that if some thing or act O is the property of N, then others must respect N’s property and not interfere with his use of O or doing of O.” “The ground of the right must be an ontologically prior law imposing an obligation upon individuals to respect the property of others”; “the idea that rights, by themselves, generate obligations seems self-referentially incoherent.”

One must ask DeHart: Why so? If God endows one (or more) of the species He creates with certain unalienable rights, then it isn’t necessarily a law that is ontologically prior to the right. God is ontologically prior, and His will is morally binding. God might of course create the human species by means of natural law, and that would make the law prior to the right, but if the right is endowed by the very act of creation then it is prior to the natural law. It is on this point that DeHart’s attempt to ‘Thomistify’ the United States Constitution and to decouple the Constitution from the principles of the Declaration breaks down. This is not to say that the Constitution need be based on either the priority of natural right or the priority of natural law. The Constitution leaves that ontological issue open.

This notwithstanding, DeHart concludes, in my opinion indisputably, that “the Constitution’s presupposition of obligation antecedent to human willing seems to entail rights in the full sense (both as enabling ‘cans’ for the person with the right and as ‘stopping cannots’ for the person not in the possession of the rights) that are antecedent to and normative for human willing. It also seems to presuppose that these rights are inalienable.” This is “the philosophy latent in the Constitution.” And it is why the Constitution is good, the framework for a good regime.

As a final note, it should be observed that DeHart’s interpretive strategy could be used with extraconstitutional texts, not only with moral theories. So, for example, a reader might compare the Declaration of Independence, or indeed any writing on the American regime, with the Constitution, to determine which texts ‘fit’ the Constitution and which do not. This would reintroduce the study of the Founders’ political thought to Constitutional interpretation, without making those texts authoritative to such interpretation in an arbitrary way.