America’s Founders made good their choice, not lesser evil

There was a time when the people who argued that the ratification of the U.S. Constitution was a choice of evil were mainly leftist radicals riding the hobby horse of the 3/5 clause on their way to discrediting America’s Founders and all their works. My WND column tomorrow will be about an article by WND’s managing editor, David Kupelian, in which he revisits this heretofore predominantly leftist slander against the Founders.  He does so in an effort to prove his assertion that they “engaged in the most monumental example in American history of deliberately choosing the lesser of two evils.” In my column (which you can look for here at Loyal to Liberty if WND refuses to do publish it in the customary fashion) I analyze the exceptional nature of the historic choice the Founders actually made (which Mr. Kupelian ignores). As that analysis makes clear, they chose to base the American Republic on the true principle of justice articulated in the Declaration of Independence. “So far from choosing the evil of slavery for blacks, they framed the Constitution with respect for the principle of government that recognized slavery as evil for all mankind.”

The best way to see to the heart of the flawed “lesser of evils” view of the Constitution may be to think about the provision of the Constitution that originally apportioned direct taxes and Representatives “among the several states…according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifth of all other Persons.” People anxious to discredit the Founders pretend that this involved treating a slave as 3/5 of a Person. In fact the language counted each slave as a person, but accorded to the slave States only 3/5 of the voting power they could otherwise have used in the Congress to protect and promote the evil of slavery. It’s worth remembering that there are several critically important clauses in the Constitution (including the due process language of the Fifth Amendment) that apply to all persons rather than just to citizens. Language that acknowledged the personhood of the slaves provided a constitutional basis for arguing that they could not be abused and killed like animals, with no accountability under the law. This is hardly a choice for evil.

The fact that such a constitutional argument could logically be made did not mean that it would be accepted, at least not while deeply rooted racial prejudice held sway. But it did provide Constitutional grounds, in principle, to assert the personhood of the slave. People with the decency and courage to take a stand on those grounds were thus given the opportunity to challenge, rebuke and seek to reform the prejudice. The language of the Constitution accommodated prejudice in fact, but undermined it in principle. This was a positive good. Compare this to the opposite state of affairs today with respect to the personhood of nascent children. To aid and abet politicians like Mitt Romney, people seek legislation that factually reduces the number of abortions, but yet and still explicitly accepts the assertion that it is lawful. Under the Constitution, however, no person can be deprived of life without due process of law. Individual whim, however accounted for, is no warrant for murder. By asserting, in cases of rape for example, that abortion can be lawful, politicians like Mitt Romney are asserting that nascent children are in principle not persons, no matter how they are incidentally treated, as a matter of fact, in this or that legislative act. (Obama, Romney and others put nascent human offspring in the same category as insects or animals occasionally protected by provision of law. The fact that legislation exists to protect them in some way does not mean that they have the status in law of persons.)

There is a distinction between statesmanship that lets evil stand, as a matter of fact, and statesmanship that establishes what is lawful or not lawful, evil or not evil, in principle. The latter provides grounds for recognizing what is good, just and lawful as such, and pursuing it by all means possible. Incidentally it also provides grounds for recognizing evil as such, and resisting it by all means possible. In this respect Kupelian’s account of the situation of the Founders does not do justice to their intention. He writes as if their aim was exclusively to deal with the evils occasioned by the inadequacies of the Articles of Confederation. This was in fact what they were officially commissioned to do. But they consciously, deliberately, purposefully chose to go beyond their commission, in order to establish a form of government that respected the requirements of right and justice acknowledged in the Declaration of Independence. They did so after having successfully demonstrating their commitment to this form of government, by their courage and sacrifice during the Revolutionary war.

Thus America’s founders did not consciously and deliberately make a choice of evil. In a sense, they could not have done so, for it was only in consequence of their exceptional choice that slavery was, for the first time in the history of political practice, recognized as evil in principle, as much for those who inflict as for those who suffer it. (This point is the core of the analysis I have submitted to WND for tomorrow’s edition.) Tragically for America, voters who plan to choose evil in the election next Tuesday do so in the course of events being orchestrated to undo the Founders’ exceptional statesmanship. And they will do so whether they vote for Romney or Obama. In practice, both men discard the acknowledgment of God-endowed right wherewith the Founders set all forms of human slavery on the path to extinction. Both promote evil in fact in a way that dooms good in principle.

In addition to their embrace of so-called abortion rights (however occasionally restricted on account of public sentiment), the prime example of this is their promotion of so-called homosexual rights. Until Obama’s recent endorsement of same-sex marriage, both men tried to pretend that their promotion of homosexual rights was somehow compatible with excluding homosexuals from the purview and privileges of marriage, as a legal institution, involving enforceable rights and obligations. Yet the whole idea of equal rights rests on the premise that those who actually have a bona fide claim of right cannot be discriminated against on grounds that in no way relate to the prerequisites of their claim. If same-sex relationships have an enforceable claim equal to that of male/female couples, on what grounds can that claim be set aside by the mere demand, regardless of right, that marriage be restricted to male/female relationships? How does this differ from, say, claiming that blacks and white have an equal claim to be respected in their right to use public accommodations, and then setting aside the claim because this or that hotel owner, or city or State has enough clout to demand that the City Council or the District Judge, or the Supreme Court for that matter, respect racial prejudice. Either race affects the fundamental claim of right or it does not.

This forces us to consider the actual basis for the claim of equal right, in order to understand which considerations properly affect the claim and which do not. When they embraced the true principle of equal rights America’s Founders accepted the will of the Creator God as the ultimate ruler, in light of which claims of right must be evaluated. Where human action arises from the Creator’s endowment of human nature, for the preservation and perpetuation of humanity, those who act accordingly to serve His ends are exercising the right as He instilled it in them. In this respect the rights (and antecedent obligations) involved in the institution of marriage are not fabrications of government or arbitrary individual preferences. They exist in consequence of the necessary role played by the cooperative union of men and women in the preservation and perpetuation of human nature as a whole, encompassing in that whole not only the body, but the mind and spirit that inform and animate the self-conscious activities of individual human beings.

When they pretend that same-sex relations are entitled to equal respect under the law both Obama and Romney disregard the basis in Creator- endowed right for the institution of marriage, a basis antecedent to human society and rooted in the will of God that transcends and justifies (or not) all human legislation. When they agree (as both men say they do) to use the President’s power as Commander-in-Chief to force this disregard on military personnel, they substitute for the principle of God-endowed right a principle of right that has no basis except the discipline of force. The fact that they have first moved to enforce their view against people who wield that force most directly, and in its most potent form, is an ominous indication of their true intention. They mean to replace the Declaration principle of God endowed right with the tyrannical view that government’s use of force is not constrained by respect for any rights except those it has fabricated, and can therefore arbitrarily alter or abolish.

Once we fully appreciate the implications of this fact, we realize that the evil choice Americans face in this election represents a triumph of evil greater still than either of the men put forward to serve its purposes. It is an evil bent on restoring mankind’s once nearly invincible ignorance of God’s true superintendence of human justice; the first and greatest political truth, which truly sets men free. We can only reject this greater evil by making a choice that goes beyond any partisan commission, a choice that acknowledges, as America’s Founders did, the principle of right endowed by the Creator. To explore this choice, before it is too late, consider the Platform Republican Approach to the 2012 Election.