Alan Keyes
February 21, 1997
Thomas Aquinas College, Presidents' Day Lecture, Santa Paula, CA

Introduction by Dr. Thomas Dillon, President of Thomas Aquinas College:

We are honored this evening to have as our Presidents' Day Lecturer Dr. Alan Keyes. Dr. Keyes is, of course, a former presidential candidate, having sought the 1996 Republican nomination for President. I suppose that fact is a kind of qualification to be a Presidents' Day Lecturer, but still we wouldn't want just any presidential candidate up here.

As an undergraduate, Dr. Keyes was a student of the late Allan Bloom, first at Cornell and then at Harvard. He received his bachelor's and doctorate in governmental affairs from Harvard University. He completed his doctoral work under the direction of Dr. Harvey Mansfield Jr., and wrote his dissertation on Alexander Hamilton and the problem of political ambition in a republic.

Dr. Keyes went on to begin a career in the United States Foreign Service. At the age of 31 he became, at the beginning of the Reagan Administration, the United States Ambassador to the United Nations Economic and Social Council, and thus our representative in the United Nations General Assembly. In 1984, Ambassador Keyes was named Assistant Secretary of State for International Organization Affairs.

Since leaving government service in 1987, Ambassador Keyes has served as the President of Citizens Against Government Waste, as the Interim President of Alabama A & M University, and most recently as the founding Chairman of the Declaration Foundation. He was twice the Republican Senate nominee in his home state of Maryland.

Behind this distinguished resume, however, lies the real reason we are honored to have him with us this evening. Ambassador Keyes' career in public service has been marked by a profound fidelity to American principle, and to the intellectual tradition of the Christian West. His deepest roots are in the Church, in Plato, in Aristotle and St. Thomas, in Lincoln, and in the kind of education that seeks first a formation of the mind in light of these timeless teachers. He is a kindred spirit to this college, and to all liberally educated men.

So, it is my great pleasure to introduce to you Dr. Alan Keyes, who will now address the topic of "The Declaration of Independence and the Spirit of American Law."

Alan Keyes: Thank you. Thank you very much.

Oddly enough, I think that the best way to talk about, or to begin to talk about, the topic this evening is to remember the fact that we are living in a time when, in spite of many claims to the contrary, we are in a society in which many people are still impressed by the lawlessness that is creeping up upon us every day. We have been assured by the present tenant of the White House that everything's all right, except that our children are killing each other -- a minor point, of course, as far as he's concerned, I suppose.

But the truth of the matter is that we have seen over the course of the last several decades an explosion of crime and violence in American society -- partly of course due, we are told, to demographics and other things that have nothing to do with anything in particular; partly, we all suspect, due to the breakdown of the basic institutions of moral formation in our society.

In response to this, one hears, of course, increasingly about the need for police and the need to expand what we are doing in the courts. I noticed that Mr. Clinton's latest proposal about youth violence, for instance, includes a desire to spend money on more state prosecutors and anti-gang task forces and other things that are aimed at dealing with the consequences of lawless violence. And it is what we are good at in this society -- dealing with consequences.

But I think we have reached the point where we have to realize that what we are actually dealing with is the consequences of a breakdown of that internal regime of self-discipline and self-control which is the best preventative for crime in the first place; known variously as "character" or "moral discipline," it actually prevents people from committing crimes, because they no longer have the mindset of the lawless.

And what is that mindset? Well, I think it's basically a mind that says that you do whatever you can get away with. And that understands that success -- that is, getting away with it -- is the only measure of whether what you have done is wrong. Because, of course, in this context the word "wrong" has no moral connotations. It simply means that you made an incorrect move, and got punished for it -- sort of like a chess game in which you make a false move and your opponent takes advantage of it and checkmates you. It has no moral connotations; you've just made an incorrect judgment. You didn't play the game well. And as a result, you got caught, or you got overwhelmed, or you got punished, or some policeman was on the scene at the wrong moment.

But if you played well and got away with it, then you are doing what, at least from your point of view, is fine and okay. That sense that there is no fundamental distinction to be drawn in action between right and wrong except that which is determined by the consequences is, I believe, the real key to understanding the difference between those who are law-abiding and those who are not.

What that means, of course, is that the law-abiding citizen is somebody who doesn't feel like he can get away with it -- variously understood as the person who lacks confidence in his own abilities (laughter) . . . well, it's possible; a person who hasn't quite thought things through yet to the realization that he can, in fact, get away with it. Or maybe he is just a person who hasn't developed the necessary courage to challenge the phony standards represented by the law, and to understand that they exist only so that the majority of people who remain thus "gutless" can be the prey of those who have greater courage. That would mean that the law actually existed as a kind of convenience for the criminally inclined, meant to discourage those who are really not cut out for it from engaging in criminal enterprises, so they can be taken advantage of by those who do.

Now, we laugh. But, sadly speaking, I would have to say that under the present circumstances, we are living in a time pretty much characterized by this understanding of what is the difference between right and wrong, between the law-abiding and those who aren't -- exemplified, of course, by the present occupant of the White House, who is an individual who, I think above everything else, presents to us this example of someone for whom right and wrong is to be determined only by success. And he seems to have actually gotten away with it; there seem to be a lot of Americans who are quite willing to reward someone like this with the presidency.

Why? Because he's successful at his manipulations and duplicity. He puts on a pretty good performance. And it's sort of like giving somebody an Oscar or an Emmy. You know, if they have performed well in the role, you don't ask whether the role was a good person or a bad person, right? I mean, if you're playing Hannibal Lector, we're not sitting there passing judgment on your evil character; we simply want to know whether the actor portraying you did a good job. And if he did a good job, then we give him a reward, and that constitutes a good character, in our day and age. What is wrong with this picture, of course, is that it reduces the difference between the law-abiding and the criminal to a mere question of success or failure.

And this, of course, would tempt people to believe, what I think it does tempt them in the end to believe, that very often the difference between getting away with it and not getting away with it is the scale of the wrongdoing. If you are petty-minded, and only commit small crimes, then you are going to get caught. But if you are really bold in your conceptions, and commit really big crimes, then you will probably get away with it -- at least in part because it's a long time before people even realize that there's anybody around bold enough to commit such a crime -- the very concept of it being beyond their ken.

I've gone through all that because I actually think that this understanding of the difference between right and wrong has prevailed -- did prevail, still prevails in many parts of the world -- for most people, most of the time, throughout most of human history. If you go back to some of the ancient philosophers -- say, Plato's Republic, for example -- this understanding would be characteristic of Thrasymachus, who comes forward and, when giving a little explanation of what justice is, says that justice is the good of the stronger, or to put it in simpler parlance, "might makes right."

And that, of course, is what it means to say that you do whatever you can get away with. Because once you have gotten away with it, your success becomes the standard of judgment. It substitutes for anything that might transcend your action, in terms of a standard. And that means, of course, that there is no justice except that which corresponds to the will of the most successful -- the ones who have managed to put together the greater force; the ones who have managed, in one way or another, to gather unto themselves the greater number of adherents; whatever it might be. And that constitutes justice in human affairs.

Now, I think you can look over the course of the centuries of human history, and you can see that that understanding of justice -- though the spectacle isn't unrelieved, in terms of human misery, it's pretty bad. The great fabrics of despotism, all over the world, rested in the end on some version of this, when the sword and that will of the conqueror were in the end the only things that constituted the difference between the lawful and the lawless. Or to put it another way, the difference between the lawful and the lawless was whatever the strongest lawless person said it was. I think that this spectacle of human history is not real attractive to most of us. And its consequences, in terms of human misery and oppression, did lead people, over the course of the centuries, to seek alternatives, most of which ended up being mere utopian speculations.

We live, however, in the context of a nation in which that rejection of the idea that might makes right is not just a speculation, but was in fact the explicit basis for the foundation of the country. When the Founders of this country set forth the idea, in the Declaration of Independence, that governments, in order to be legitimate, have to be based upon the consent of the governed; when they, by adopting that principle, put in place the basis for what has become our system of self-government, they did so declaring quite explicitly that the reason that this idea of legitimacy was correct had to do with a principle that acknowledged that there is a ground for justice in human affairs that goes beyond human will, beyond human success, beyond human strength, and that establishes a principle by which justice can be understood and determined, and through which even those who have no strength and no prospect of success can nonetheless claim to be respected in their basic dignity -- can seek justice; can declare grievance, even against their well-armed oppressors.

That principle, stated in the Declaration, was very simple: "We hold these truths to be self-evident, that all men are created equal."

We know that part. Everybody still kind of, more or less, in some oblique fashion, is willing to hear that part and acknowledge it. They, generally speaking, leave out the "created," though. No, this is true. They literally do it in a lot of cases now . . . "that all . . . " (and, of course, we can't say "men" anymore, can we -- because we have become so unintelligent that the idea of the generic use of the word escapes us, so we have to use the word "people"). But . . . "all people are equal," or to translate it even more simply, "all of us are equal." And we won't spend too much time worrying about what the "us" includes, so that the folks at PETA and other places won't be upset.

They articulated the principle "all men are created equal," but they also went on to say something about the source of that equality: "and are endowed by their Creator with certain inalienable rights." For a moment we shall put aside the cavils that are bound to be raised by those who adhere, these days, to this idea of the separation of church and state; we'll talk about that a bit more. And we will simply point to the fact that what that means, if it means nothing else, is that our rights are not the result of any human determination. Even if we are not willing to agree exactly on what the word "Creator" connotates, even if we are not willing to talk in any positive way about what might be the attributes of this Creator, we do know that, if what the Declaration says is true, then by negative inference our rights do not have their source in any human determination or will. We can safely say that.

And actually that already provides us with a step forward from "might makes right," doesn't it? Because obviously we have concluded that as far as human strength, will and success are concerned, human strength, will, and might do not make for right, at least not in the sense of "rights," because we have sourced those rights in a will that lies beyond the human. Except on those moments when we declare ourselves to be the creator. And even though there are some who entertain this possibility, they haven't yet been willing to assert it. So the Declaration at least provides us with a starting point that places the ground of justice somewhere beyond the realm of human decision, or what we would call these days "positive law" -- that law which is the consequence of human legislation.

Now I would have to say that if we then look at the logic of the American Declaration, it goes from that recognition of a transcendent ground for the claim to human rights, to the conclusion that in order to be legitimate -- which is to say lawful in the larger sense, or just -- government must be based upon a principle that respects the existence of those basic rights, which is the principle of consent. From these ideas flow, then, the consequences of self-government that we live with every day.

And that very simple train of logic, it seems to me, helps us to understand the relationship between the principles stated in the Declaration of Independence and what was then later formulated to be the instrument of government in this country, which is the Constitution of the United States. The Constitution represents an effort to put together a framework of government that reflects and respects the basic understanding of justice and right which is succinctly articulated in the Declaration. It is, to the Declaration, what an architect's drawing is to the scientific principles of engineering. So that the architect, with an understanding of those principles, puts together a framework in which those principles are embodied in a viable or workable model. And that is, of course, what our Founders were seeking to do when they put together the Constitution of the United States.

I say that not by way of speculation, either, but because that is in fact what they themselves said they were doing. If you read the debates in the federal convention, if you read the extensive debate that took place without doors after the convention was released to the general public for ratification in the thirteen states, you will find, running throughout that debate, a set of common assumptions and principles which were common not only to those who advocated the Constitution, but also to those who opposed it. They took a different view of whether or not, in fact, the Constitution of the United States, as it was prepared by that federal convention, would satisfy the requirements of justice. But their sense of what those requirements were was unanimous. There was a unanimous understanding that the aim or end of the exercise was a government that respected the basic rights of human beings, for the sake of which they declared, all of them, the American Revolution had been fought.

So I say that because it might come as a surprise and shock to some people, but there was no dispute in principle, when the Constitution was being debated and ratified, about the standard of judgment that was to be applied when you asked yourself whether it should be accepted or rejected. You read through the Federalist Papers, you read through the works of Brutus and others who opposed the arguments being made in the Federalist, and they all had common ground. They were all, perhaps, coming to some different prudential conclusions about whether what the Constitution proposed would in fact safeguard basic rights, respect what they commonly agreed to be the principles of small 'r' republican government. But they agreed in believing that the aim or end of the exercise was a frame of government that would respect those principles. There was, to put it simply, a common idea of justice which animated them all.

I think in the end it was, in fact, that adherence to a common idea of justice that made it possible for the Constitution to be adopted, and for that adoption to be respected in the beginning in spite of the very real differences that existed about whether the Constitution was a good one or a bad one, one that would last and serve liberty or one that would, in fact, erect an edifice to destroy it. And very strong opinions were expressed on one side and the other about this point of prudential judgment. What was not in dispute, however, was what the principles of judgment ought to be, what the idea of justice was, which animated those who engaged in the debate.

That's important, because it means that, contrary to the discussion we had of the criminal mind, there was a kind of unanimous sense in that founding generation -- not just amongst those we call the Founders, who were responsible, as it were, for the Constitution, among other things, but also among those who opposed it -- there was a common sense that might did not make right, that there was in fact a transcendent ground for justice, and that in the edifices of human creation, be they constitution or law, that idea of justice had to be respected.

This went so far that when you read the debates on one side and the other there is also a common set of assumptions about what the consequences of an unjust government were likely to be. And the consequences in America, they all assumed, would not be that you would just have some edifices of despotism erected and everybody would accept it; they kind of felt that when the powers of government were abused, the likely result was going to be violent rebellion.

And this was even used, by the way, by proponents of the Constitution, to strike down certain objections to it as absurd: suggestions that power could be abused in various ways -- a standing army would be abused, for instance, by the president -- when it was assumed that any such abuse would be met by armed resistance from the populace; the idea that the legislative powers of the Congress would be abused to abolish the existence and prerogatives of the state governments: again, dismissed on the ground that people would never tolerate that; they'd be up in arms! And so it was taken for granted not only that there was a common set of principles that determined justice, but that people felt real strongly about them and, push comes to shove, they would be willing to go to war in order to vindicate them.

Now, we can understand why they might have felt this way, because they were very close to that period during which they had gone to war over these very principles. They knew that they were willing to do it. On top of which, of course, was the immediate environment from which the constitutional convention came; they had also seen the famous Shay's Rebellion, which, as these things go, by the historic standards of rebellion, was kind of a mild thing, barely to be called a rebellion. It ended almost by agreement, that the so-called rebellious ones would cease in their rebellion. But nonetheless, it was also universally cited as one of the things that motivated people in believing that some great changes had to be made in the Articles of Confederation.

So this idea that the principles of justice which they believed in were sufficiently understood to be true and right that they would even go to war over it -- that is to say, that they were willing to embark upon what they knew to be an adventure in which life, and fortune, and family and all dear things would be at risk -- this too was their common understanding.

I go through all of this because it seems to me it is impossible to understand the meaning of the Constitution, or the meaning and intention of the Founders in putting it together, if you don't do it against that background. And this is why it surprises me, sometimes, when we encounter people who otherwise have the reputation of being conservative in their understanding of the Constitution who reject that entire background as irrelevant. There is a contradiction here: one at the simple level of logic, and the other at the larger level of principle.

The contradiction at the simple level of logic is pretty clear, it seems to me. I mean, you have folks who say that they wish to adhere to the original meaning of the Constitution, and to respect, somehow, the original intention of those who framed it. This is a laudable thing, I think. And it can save you from many errors which are pretty commonplace in the judicial interpretation of our day. So I don't wish to suggest that this -- what shall we call it, adherence to the "originalist" position? -- is a wrong one.

But you do have to ask yourself: if you want to adhere to the original meaning of the Constitution and the original intention of the framers, how are you going to determine what that meaning is?

It is said that you do so by a strict adherence to the words of the Constitution; you must read the document. I do recommend this. I think that it is very good to suggest that our lawyers and judges, particularly those charged with the interpretation of the document, ought to read it. You laugh; but this is not any longer commonly required in constitutional interpretation. So we should have great respect for people who are willing to adhere to this idea.

But then a problem arises. Because if you are going to read the Constitution, how are you to understand its terms? There is, of course, the dictionary. And when we are in the lower grades, this is generally understood to be a way to get to the meaning of words. But at some point we reach that level of sophistication where we realize that, on occasion, Mr. Webster is a little bit confining, and it is necessary to look for a rather larger background against which to determine the meaning of words. So where do you go?

What I find interesting -- and I would have to say here that I am alluding, among other things, to what I know to be the articulated view of a justice whom I greatly respect on the Supreme Court, Justice Scalia, who is what we would call, I guess, an originalist, who says that he wishes to adhere to the original intention, and who believes in reading the Constitution, for which I greatly admire him. But it seems to me rather hard to determine the meaning of words apart from the understanding which informed those who were using the words. And this is where I would have problems if one is going to say it is possible to interpret the Constitution without reference to the philosophy of government whose principles are succinctly stated in the Declaration.

Illustration: in the Constitution of the United States we are told that it is a duty of the United States to guarantee to every state a "republican form of government." Yet I have scoured the document, and I find nowhere in it a definition of what the "republican form of government" is. I could go to a dictionary, but I'm afraid that if I went to any dictionary that was manufactured in recent times I would be entirely misled on this point. Trying to understand the meaning of the Founders, I suppose I could go back to a dictionary that was produced at the time of the founding. But I would be forewarned, if I was at all familiar with their own writings, that even in the Federalist Papers we are told that the word "republic" has had many different meanings ascribed to it by philosophers. And that those meanings have, in fact, been given at various times; the word has been attributed at various times to what would seem to be vastly different forms of government. The oligarchy in a place like Venice is referred to as a republic. Rome in its early days is a republic. The oppressive, totalitarian regime of the Spartans is a republic, as well as the looser Athenian democracy. One could even go so far as to say that the word has been loosely ascribed, in its larger sense of simply an allusion to the common things, even to regimes which we would, on the basis of their form, have to call monarchies, and which have generally been understood to be very different from republics.

So how are we to determine the meaning of this word? There is, right there in the Constitution itself, a positive injunction upon the United States to guarantee a republican form of government. And yet it would seem that if you took the dictionary approach it would be hard to determine what "republican" means.

You would then say "I will go and I will read the writings of the Founders." This is good. "And I will see what they say republic is." And you'll find, in places like the Federalist Papers, definitions that have to do with a government founded upon the consent of the people, upon the principle of representation, upon the distribution of the powers of government into several branches which are separate in terms of the legislative, the executive and the judicial; you'll find an allusion, in that context, to philosophers who wrote about why consent was important, like Locke, and why this distribution of power was essential to republican government, like Montesquieu -- they would refer you to all these things. But, of course, as you are exploring all of these different nuances what you will find is that they simply represent an elaboration upon the philosophy of government whose principles are succinctly stated in the Declaration. What the Declaration provides us with is a succinct statement of the principles of republican government. Not just the "what," but the "why" of the republican, small "r," idea of justice.

Now that means that if you were a thorough-going originalist, you would have to take the principles stated in the Declaration very seriously. Because, apart from those principles, you would not even be able to apply to the Constitution of the United States its right name, which is that it establishes a republic. So when I hear folks, or hear of folks, who cavalierly dismiss the Declaration, in terms of its relevance for constitutional interpretation, I have to scratch my head. It's sort of like somebody looking at an architect's drawing and saying that you can understand what it means apart from any understanding of the principles of engineering. Generally speaking, this is absurd.

And in this specific case, it is also absurd. That from the point of view of logic; if you want to get to the original intention, then you must take seriously that philosophy of government which formed and informed that original intention. If you do not, then you are maybe going back to find out what words the Founders used, but you are refusing to consider the meaning which they ascribed to those words.

And it hardly seems to me a useful exercise. I mean, I know this is something that at some stage of our reading life we do. My son does that; he's seven years old. He is able to look at the words on the page and read them, every one. He cannot, generally speaking, tell you what they mean (not all of them). It is a useful exercise from the point of view of his phonetics, and his ability to be un-intimidated by words on the printed page. And I suppose going back and reading the Founders will make us more comfortable with the somewhat more complex syntactical structure that they used in those days, and the longer sentences they were wont to write. But it's not clear to me, beyond that, why you would engage in the exercise of reading the words of the Founders, when you cavalierly refuse to consider that which gives real meaning to those words.

But there is another problem with this exercise, and that is a problem at the level of principle.

This is a problem that would exist whether we were trying to understand the meaning of this constitution, or that law, or really anything else that pretends to be lawful. It is a problem that we saw at the very beginning of this talk, when we considered those who regard the meaning of law as not to be distinguished from the question of success. And we found, ultimately, that the principle that "the just is what you can get away with" becomes the principle "might makes right."

What I would ask you to consider is whether there is any difference, in fact, between the idea that might makes right, and the idea that there is no basis for law except positive legislation. Because what are we saying? Are we saying that if you can get enough people to agree on something, then it's a law and it's just? Or maybe you don't need to get enough people, in terms of number, but simply enough people in terms of power and influence, and then it's a law and it is just? And once you have achieved that purpose you are able to posit the law, and you have it -- you agree on it -- and you can then work from that starting point. And that's all there is to justice.

Citizens would then understand that justice meant obedience to the law, and that the law was whatever law had been successfully imposed on them by whatever force happened to be successful at it. In our time it can be the force of opinion, the force of the weight of majority views. In other times it might be the force of arms, or superstition. But whatever might be the case, there is no justification -- no sense of justice in the law -- beyond that sense of the force that it obtains from these human acts or circumstances. Now I think that that is, briefly put, what it means to be a "legal positivist."

But if that is the position you take, then there is no transcendent basis for justice. If there is no transcendent basis for justice, then there is no requirement that government be based upon consent. Why should government be based upon consent, if it can be based successfully on force? If the difference between the just and the unjust is what you can get away with, then if I happen to be able to get away with convincing you to obey me because you're afraid I'm going to kill you, that is as legitimate as getting you to accept it because I've deluded you into believing you have consented to it. Either way! It doesn't matter! Consent, force -- there is no difference. It all depends on what you get away with.

But then you would have to ask yourself a serious question. Our Founders went to great pains to put together a framework of government that respected the principle that government should be based on consent. They spent long months arguing about how to fashion the legislature, what to do with the elections, and how to balance and limit the powers: all so that there would be a government that respected the principle of consent. If there is, however, no requirement that government be based upon consent, why should we regard all that painstaking effort as anything more than the folly incident to their particular set of delusions. "So that's what they thought at that time! We think differently, perhaps, today! And therefore we should act differently; we should base our judgments on a different set of ideas."

Of course, if that's the conclusion that you reach, then being an originalist is simply an absurd exercise in -- rather insane -- self-constraint. Why would you wish to accept the constraints imposed upon you by the principles of judgment applied by folks two hundred-odd years and more ago, living in a time not particularly relevant to your time, and in an age before we had all the wonderful miracles and wonders that we have today, which of course prove how far superior we are to them in our understanding?

The problem with trying to be a legal positivist at the same time that you are an originalist, is that if you are a legal positivist, then it is simply irrational to be an originalist. Why should you value the judgment of the Founders? Who are they and why should you care? They acted in the light of certain principles which constrained their argumentation, which required that they look at these alternatives and structure things in a way that required votes, and legislation, and rotation, and all this distribution of powers, and checks and balances . . . . Of what relevance is it, if the principle of justice which they were attempting to fulfill was simply an arbitrary consequence of their particular set of circumstances, prejudices and delusions? It makes no sense. So if you are Antonin Scalia, I myself applaud the consequences of your willingness to subscribe to these delusions, but I don't necessarily understand why you hang on to them. It makes no sense.

I believe it can only be made rational to respect the original intention of the Framers if that intention somehow respects a permanent and transcendent principle of justice which was true then, and is true now, which applied then, and which applies now, and in light of which they framed the Constitution and we ought to interpret it.

If we accept that understanding, then it becomes, once again, rational for us to consider what they were doing at the time. Why? Because, if we accept that understanding, we are still part of a community with them. We still are part, as it were, of the same society, because we live in a universe governed by the same moral principles.

What legal positivism actually does is cut us off from that founding period even as, depending on the circumstances, it has the potential to cut us off from one another. There is no common ground between us and our Founders if there are no transcendent principles of justice which allow us to understand that their painstaking effort to establish a government based upon consent was in fact a requirement of justice.

We can identify with them -- we can respect what they do -- only if we respect the end for the sake of which they acted, the aim which they had in view when they acted. If we reject and devalue that aim, then we deprive ourselves of any ground for respecting their intention or meaning.

Well, not 'any' ground; there is a prudential ground, of course. We will respect their intention or meaning because, for a while, we'll get away with convincing people that it is important to do so. But then, one day, someone will come along and say "that emperor has no clothes, and I won't agree with you anymore." That happened in the 1960's, I believe.

And in consequence of that little boy saying "the emperor has no clothes," we have lived since with a regime of growing whimsicality and arbitrariness in our judicial system. Because, you see, even as we do not have to be constrained by any respect for the judgment of the Founders in the way in which they framed the Constitution, so a particular judge today does not, in principle, have to be constrained by the judgment of the legislature that made the law that he is interpreting.

Why should he be? If the Founders were not respecting a principle of justice we may take seriously, then at any given moment how can legislatures do so? It simply becomes a matter, then, of what you can get away with. If you are a judge, and you happen to disagree with this particular law, or that one, you simply write an opinion that says so. And you justify it in some words which you think will be attractive to a large enough constituency in your society and you put it out there. And if you're right about your guess in that regard, it works!

Particularly it works if you still live within the shadow of a sense, among your people, that there is some reason that they should listen to what you say. And judges still benefit from that in our society. We are still a people living in the belief that justices somehow speak for the law, and that the law is based upon a transcendent -- in the end -- principle of justice, which we are constrained to respect.

But if the judge, and the legal profession, and the legal formation from which the judge comes, reject such an understanding of justice, will someone explain to me why we should be constrained by it? If the Justices on the Supreme Court have no respect for the Founders, because they believe there is no transcendent principle of justice; if the judge sitting on the bench has no respect for the legislature, because he believes there is no transcendent principle of justice investing that legislature with authority -- then why should we as citizens have respect for the opinion of the judge? Since in the end the judge is telling us that the only thing that invests him with authority is the respect which we accord to that judgment. And the giving or withholding of that respect is entirely up to us, isn't it? If the judge is right to disregard the possibility of justice in his opinion, why aren't we right in disregarding the possibility of justice when we react to that opinion?

Of course, one of the objections that will be raised to this is that it will probably usher in a period of very inconvenient anarchy. But I suggest to you that that was something that happened, not when we realized we no longer had to respect the judge, but when the judge asserted that he no longer had to respect the law -- that there was, in fact, nothing that was the basis for his authority, or the authority of any institutions or structures of which he was a part, except the mere fact that we agree to abide by his words, to respect his judgments, to accept the results of this election or that election.

Once you have freed yourself from the idea that there is a transcendent basis for justice, you have freed everyone. And, in a way, you have freed the society itself -- from the discipline which is implied by the need to respect that principle, and to search reasonably and consistently for ways to apply it.

I think that that was, in fact, what the Founders did when they put together the Constitution. They believed that there were certain basic principles of justice that had to be respected, and that if you wanted to respect those principles of justice, you then had to look for those forms of government which allowed you to make government power and government force safe for justice: legitimate, lawful -- just.

And so they applied a great deal of effort to trying to put together a structure that would, in practice, respect those principles. It's almost as Plato said, when he talked about the Ideas: there was the idea, over here, and you were trying to put together the model, and every now and again you'd look back at the Idea, see if the model corresponded. And if it didn't, you would suggest a correction. But the existence of that principle -- the existence of those fundamental, transcendent ideas of justice -- was essential to the way in which the structure was composed.

If that understanding is correct -- if that's what the Founders were doing -- then truly to respect the original intention would require not only that you read the words, but that you understand the aim with which the Founders were acting. That you try to recapture a sense of the principles they looked at. That you try to recapture a sense of the arguments they made, which convinced them that this application of the principles was going to produce the desired result.

It is true, of course, that the reason you have courts, and the reason you have judges, is that circumstances change. And that in order to apply those principles to circumstances today that did not exist at the time of the Founding, reason must again be applied. And in this we must be creative; in this, in fact, it is correct to say that our Constitution must be a living document, or we shall be a dead republic.

But that life is not the life of licentiousness, free of all respect for the basic principles of justice or the basic efforts of the Founding Fathers. Instead, that sense of the life of our Constitution is a life of reason, in which we exercise our rational faculty in order to emulate, in our time and circumstances, the statecraft which, in the first instance, produced the Constitution itself. If you do not respect that craft -- if you are unwilling to acknowledge the principles on which it was based -- then you do not respect the original intention of the Founders. And, at bottom, your "originalism," your "conservatism," is just another arbitrary whim.

Now, of course, I do not wish to suggest that I would discourage anyone from indulging that arbitrary whim. In fact, I hope that someone will continue to indulge it, for the time being, since, at the moment, it appears to be one of the few remaining refuges of any kind of restraint in the despotism of our court system.

But you must understand that it is not a reliable constraint, since, in the end, by rejecting the principle from which discipline would truly flow, it is no more constrained in its conservatism than those who today advocate discretionary interpretation are in theirs. It is simply a different exercise of discretion: maybe by someone who is simply too timid to break with the Founders and embark on a new way. It is safer to stay within the shadows of the Founding Fathers than to try our own way of doing things. Maybe, maybe not, but that's just a whim.

Perhaps you will wonder why I am so concerned with this, and why I take a different view. Partly it is because my concern with these matters is not just theoretical. It grows out of the fact that I, at least, come from a people in America who have to take this question of whether there is or is not a transcendent basis for justice very seriously. It is one of the reasons that I cringe a little bit when I deal with the whole question of legal positivism.

And I thank God for one thing. I thank God that this did not become the paramount understanding of the American legal profession before the Civil War. Because if it had, I would probably be doing stoop labor in North Carolina. And judging by my general predilections in life, I don't think this would agree with my constitution.

Think back to the period preceding the Civil War. Think back, if you like, to things like the Dred Scott decision, and the response of individual American statesmen to that decision. One of the requirements of agitation against the institution of slavery -- and finally one of the requirements of the statesmanship which helped us through the crisis brought on, largely, by the presence in this country of that institution -- was the fact that there were many people in the country who took seriously the natural law tradition -- the natural rights tradition -- that the Declaration represented.

They believed it. They understood it to establish somehow for us a standard of justice. They repeatedly wrote, from the time of the founding all the way through the Civil War, that the principles on which the American Revolution had been fought passed a judgment against the institution of slavery. And that, therefore, it was necessary -- somehow -- both to prevent its spread and to reconsider that which sustained it -- like the importation of slaves -- and that which allowed it to exist.

If there had been no respect for that tradition, there would have been no crisis of moral conscience. And without that crisis of moral conscience, I do not believe there would have been a civil war that involved the question of slavery. There might have been one involving other questions, but that one would not have been paramount, since it would not have been of great concern.

'Some people like it; some people don't like it; it's not a big issue; I won't bother you; you don't bother me' -- we've heard this kind of argument before. And that is where it would have lain, except that the conscience of America was not shaped by the belief that the law is what the judge says it is, or that the law is what the majority says it is. There was a sense that there is a law higher than any human judge or legislature, and that that higher law must inform both the structure of government, and the substantive content of legislation. It must inform the institutions of self-government, even as it condemns the institution of slavery.

We now live in a time when it is considered to be naïve -- childish -- to have any respect for that tradition. But as that tradition dies, so does the conscience shaped by it. And I dread -- I shudder to think -- what shall happen when we are faced with new evils that lay claim to justice, when we are no longer armed with a conscience fortified by principles that allow us to recognize injustice for what it is. In our time -- just as for the so-called "originalist" who is actually a legal positivist, originalism turns out to be a mere whim -- so our concern today with 'rights' and with the 'equality of all before the law' has been reduced to a mere prejudice.

The thing that ought to make you pause, however, is that prejudices change. And though today we seem to have some prejudice in favor of the rights of minorities, and this one and that one, when we tire of it, you should ask yourself is whether you shall be on the giving or the receiving end of oppression. Because you shall be on one or the other. And there shall no longer be any barriers of conscience to prevent the full and brutal weight of that oppression from falling heedlessly upon your head.

The only thing that might stand in the way is that people have a little less stomach for raw bloodshed than they did in the past. But don't fool yourselves. That's a taste that humanity has found itself to develop over and over again, as civilizations collapse. The beast still lurks within us, and it will turn on us, and rend and devour us, once we have abandoned the guardian angels of our liberty.

You might wonder why it is that today I chose to take on what you might understand, in some sense, to be a kind of ally or partner in "conservative" thinking. But I've got to tell you, we've reached the time when we had better be really clear, when we try to apply and to understand the meaning of terms like that. There are people who are quite good, at one level, but who, when push comes to shove, are going to be quite unreliable. And who -- though they can give us the right opinion, sometimes -- in the end will not be able to help us to educate people to understand why it is the right opinion.

And is that not the great challenge of our time? For if, in the end, the enforcement of law does not depend upon mere force or coercion, or how many police you station on the street -- if, in the end, it depends on the hold which respect for law and the love of justice have upon our hearts and minds -- then the key to lawfulness becomes education in the true sense of the term: the shaping of the heart and mind in such a way that it respects not just the consequences of law -- order and security -- but also the source of the law, which is justice and that transcendent will which constitutes the basis for all justice.

It is this, then, which leads us to understand that the relationship between the American Declaration of Independence and the Constitution is not just a relationship between a document which sets forth the principles of small "r" republican government and an instrument of government intended to apply those principles and carry them into effect. It is also a relationship between the character which allows us, as a people, to put that instrument into working practice, and the principle without which that character cannot be formed.

For it is the Declaration which points us from the idea of justice to the source of justice, from the claim to rights to the love of that will -- and the respect for that authority -- which is the source of those rights. It is the Declaration which takes us from a concern with the fate of the republic, and leads us to understand that that fate depends upon our reverence for the existence and will of God. It leads us, then, from a mere concern with justice, to a deep concern for truth. And for that which constitutes the heart of truth, which is the will of God. Thank you very much.