Catholic natural law tradition has become significant to contemporary conservative constitutional theory - conversation with Professor Ken Kersch

Professor, you have been researching American political and constitutional development for a long time and you are author of many books from this area, the most recent one is the Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism. Can you introduce us into the relationships of conservatives to the Declaration of Independence as well as to the Constitution?

We should distinguish these two important documents. The Declaration of Independence (1776), drafted principally by Thomas Jefferson in the aftermath of the first battles of the American Revolution, formally announced and justified the separation from Great Britain. Ever since, many Americans of diverse political orientations have appealed to the principles of the Declaration to support a broad array of political campaigns and causes. They have done so with the aim of forging an intellectual and emotional link between those latter-day political and constitutional campaigns and causes and the core principles upon which, it is said, the nation was founded.

The Declaration, however, had several parts and did several things. It began by announcing the creation of a new sovereign and independent nation, entitled to assume a “separate and equal station” among “the powers of the earth.” It then justified that separation, and claim for national independence, by an appeal to natural rights.  This is an appeal to a higher law over and above the then-regnant man-made “positive law,” in this case the (positive) laws of England, to justify a claim of national independence. The argument was that the laws of man are only legitimate when they are consistent with the higher, transcendent, and universal standards of justice and right.  When, in a “long train of abuses and usurpations,” the lower, man-made positive laws consistently and flagrantly violated the principles -- indeed, the commands -- of higher law, the Declaration declared that the people had a natural right to revolution -- to “alter and abolish” that government, and “to institute new Government” by common consent, “laying its foundation on such principles and organizing its powers in such form, as to them shall seem mostly likely to effect their Safety and Happiness.” The most extensive part of the text then sets out “a long train of abuses and usurpation” which the American colonists said demonstrated that Great Britain’s actions had worked to subject them to a “tyranny” and “absolute Despotism.” The Declaration ends with a pledge of solidarity by its signatories in the fight for national independence and freedom.

The Constitution is a very different thing. It is not a creedal document but a concrete plan of government: it maps out the institutions and powers, and limits on powers, of the American government. What Americans call their Constitution (1787/1789) is actually their second constitution: their first (would-be) constitution was The Articles of Confederation (1777/1781-1789), whose institutional architecture was widely adjudged to be a failure. A group of notable Americans met in Philadelphia (what Americans now call “The Constitutional Convention”) to draft a new constitution that they hoped might work a lot better.

Over the course of their history as a modern movement, which involved a long period out of power,

 However, in recent years, American conservatives have moved towards claiming that they are the nation’s true repository and protectors of the principles of the Declaration and the institutions of the Constitution. The implication, and charge, is that the country’s liberals -- Democrats -- are enemies of the Declaration and Constitution, and have betrayed American principles and abandoned the country’s core institutions.

Given the diverse constituencies that ultimately came together to form the modern conservative movement, its path to political power was far from smooth. While the claim of constitutional fidelity and need for restoration was widely shared on the postwar Right, their actual understandings and theories of what the Constitution meant and required were quite varied -- indeed, often opposed to, and even inconsistent, with one another -- and conservatives fought hard over those understandings and theories. As for the Declaration, and particularly its commitment to an equality of natural rights, there were plenty of traditionalist conservatives holding a position, articulated as early as John Adams (1735-1826), that denied that all men were created equal, and adjudged that claim to be patently false -- the product of pie-in-the-sky speculative philosophy denying what everyone from practical experience knew to be true: that men were by nature unequal. There were also conservatives who denied that the Declaration’s natural rights provisions had any direct implications for day-to-day American politics. The Declaration’s “higher law” appeal to natural rights justified recourse to the right of revolution, to which Americans had appealed in claiming their national independence. However, once the newly independent Americans had “institute[d] new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness” through the sovereign act of “We the People” in adopting a Constitution, the nation was henceforth, for all practical purposes, a government of positive, man-made laws.

You are using the term “Declarationism” that the Constitution is best interpreted in light of the principles of the Declaration of Independence. Can you shed some lights on this concept?

I have used the term “Declarationism” to describe one particular enlistment of the Declaration of Independence in politics by the modern American Right which has been too rarely discussed but is increasingly influential. The “-ism” I append is there to indicate that this use of the Declaration on the modern Right is a political ideology. It is most prominent on the American Christian Right (amongst evangelical and fundamentalist Christians and right-wing Roman Catholics), and amongst a set of right-wing Straussian (especially “West Coast” Straussian) political philosophers (devotees of the political philosophy of the émigré German Jewish University of Chicago political philosopher Leo Strauss (1899-1973)).

and provides the only proper foundation for any legitimate government, including and especially the government of the United States. In their view, the content of that higher law is unified, coherent, and self-evident. The content of that natural law as presented by proponents of Declarationism, they insist, is consistent and coextensive with the politics of the contemporary Christian Right. Conservative Declarationists argue, moreover, that the requirements of natural law have been consistently flouted by liberal Democrats, particularly as concerns “culture war” issues (e.g., abortion rights, gay rights, the role of religion in public life, etc.). This rightist political ideology has then been used to underwrite an intense form of Christian Nationalism within the contemporary Republican Party. That form of nationalism holds that conservative Republicans are the true Americans who have cleaved firmly to the principles of the Declaration of Independence, while liberals and Democrats, through their support of feminism, gay rights, and the separation of church and state in particular, but also in their support more broadly of a modern, meliorist regulatory and administrative state, have betrayed the American Founding and its principles, and, as such, many of these conservative Declarationists say -- as does President Trump, whom many Declarationists support -- are enemies of the nation, or traitors.

How does it relate to natural law, since the Founding Fathers were believers of natural law as the framing of the Declaration of Independence clearly shows? Why do you think this approach is relevant and important in addressing the constitutional and legal challenges of today’s world?

The eighteenth century American Founders, who were steeped in the Enlightenment and almost all (Protestant) Christians (albeit often of an unorthodox, rationalist, and empiricist, kind characteristic of their age) certainly believed in “the Laws of Nature and of Nature’s God,” and a “Creator” who had endowed men with natural rights. They believed, in a certain sense, in “divine Providence,” the laws of nature, and certainly, in “natural law.” But it is far from clear that -- and here, Jefferson himself, who kept a personal copy of the Bible that he cut up with scissors to remove all the miracles and other supernatural passages, is a case in point  -- the American Founders believed that the content of that law was always obvious, or even known, in the way that contemporary conservative fundamentalist Christians (who are Biblical literalists) or right-wing Thomist Roman Catholic theologians believe it is obvious and known. The contemporary American Right has a very robust understandings of the prescriptions of “the natural law.” They get those robust understandings of its content from Christian theology, particularly as it concerns what is natural and right, as ordained by God -- say, the natural, divinely-ordained roles of men and women. And once these conservative evangelicals, fundamentalists, and Roman Catholics have ascertained, through theology, what is natural and unnatural, they declare that to have been inherent in the Declaration, and hence in the very foundation of American nationhood.

How in your view can natural law or “Declarationism” justify and support the solidification of modern conservatism?

The two seminal Declarationists I discuss most extensively in my book are the Claremont McKenna College Straussian Harry V. Jaffa (1918-2015) and the Jesuit Catholic priest and theologian John Courtney Murray, S.J. (1904-1967). Jaffa’s book Crisis of the House Divided (1959) rightly presents the core issue of the famous debates (1858) undertaken during the campaign for the Illinois U.S. Senate seat between the challenger Abraham Lincoln and Senator Stephen Douglas concerning the status of slavery in the U.S. western territories (and, hence, future states of the Union) as a contest between a proponent of higher, natural law (Lincoln) and a partisan of the merely, human, man-made positive law (Douglas). Lincoln accepted that the initial constitutional bargain made by “We the People” had provided for the protection of slavery where it already existed (although slavery was national at the time of the founding, at this point it was confined to the South and border states). But, citing the principles of the Declaration of Independence, Lincoln declared slavery to be a moral evil and abomination, and, if the Constitution were read in the case of ambiguity as Lincoln said it should be read, in light of its underlying foundational principles as set out in the Declaration, it did not authorize slavery’s extention one inch further. Stephen Douglas, by contrast, was a proponent of popular sovereignty: each new state would get to vote democratically on whether it wanted to authorize or prohibit slavery within the boundaries of that state. Jaffa’s book passionately argues that the Lincoln-Douglas debates were of world-historical importance, not just on the slavery question, but as arguments, in the voice of Lincoln, for the superiority of natural law to positive law. This was later extended by Jaffa and the conservative movement scholars who followed his lead not only to a general proposition that all human laws must be consistent with the natural law but, given their robust understandings of the content of natural law as derived from the conclusions of conservative Christian theologians, that laws protecting abortion rights, gay rights, and even providing for a modern regulatory and administrative state (given natural rights to property and liberty more generally) were not only misguided but both morally and constitutionally illegitimate.

John Courtney Murray’s We Hold These Truths: Catholic Reflections on the American Proposition (1960) was something different. Unlike Jaffa, Murray was not a conservative: he was a major leader in formulating the Catholic Church’s Vatican II reforms, which in significant part involved modernizing the Church through a new theology that set out “articles of peace” between the universalist claims of the Church and the principles and institutions of liberal democracy, including the “distinction” between church and state, the recognition of individual rights (including the freedoms of speech and religion, and hence, intellectual and religious pluralism), and, within specified constitutional limitations, majoritarian democracy. At the time, many conservative Catholics in the U.S. were deeply uncomfortable with what they, like others, held to be the country’s commitment to liberal democracy. They believed that the country’s founding principles and constitutional institutions were largely inconsistent with the requirements of the (traditionalist, pre-Vatican II) Roman Catholic faith. As the title of Father Murray’s book makes clear, and at the moment the country was grappling with the possibility of electing its first Roman Catholic president (John F. Kennedy), Murray’s We Hold These Truths -- starting from the natural law and natural rights principles of the Declaration of Independence -- offered an intricate theological exegesis “demonstrating” not only that the American founding and American institutions were consistent with Catholic theology (as explicated by St. Thomas Aquinas) but that, given the American Founders’ deep grounding in a natural law tradition, their intellectual and moral foundations were best and most deeply explicated by that Roman Catholic theology. This meant not only that faithful Catholics could be loyal Americans, but that faithful Catholics had a special role to play as expositors and guardians of the country’s creedal principles, as set out in its Declaration of Independence and as implemented by its Constitution.

The arguments in both of these books have been very influential on the contemporary American intellectual Right. Their arguments have been enlisted by right-wing scholars and popularizers alike as conduits for the importation of Christian theology into understandings both of the meaning of the U.S. Constitution and of contemporary U.S. nationalism. One can see this, for instance, in the many analogies made on the contemporary Right between abortion rights and slavery, and by conservative invocations of the Declaration, Lincoln, and the nineteenth century abolitionist Frederick Douglass in the fights against gay rights and for the aggressive reining in of the country’s modern administrative state.

The idea of inalienable fundamental rights was born within the states more than two centuries ago. However, they have become international and they are increasingly aspiring to shape how states can and should regulate. So we live in a world where the human rights’ idea became a policy and engineering tool a lot of time and has begun to be inflated. How can natural law react to this modern challenge?

This is a large and complicated question.  The flip side of what I’ve said so far is that liberals and people on the American left have also extensively invoked principles of inalienable fundamental rights in American politics, and have done so ever since Thomas Paine (1737-1809). The Declaration of Independence’s author, the (inconsistently) egalitarian Jefferson, it is worth emphasizing, was certainly not considered, nor considered himself, a right-wing (or Tory) figure. Indeed, until recently, Americans on the left, often campaigning for political reform and change, probably invoked the language of fundamental, natural rights much more extensively than did conservatives, who, as traditionalists, tended to defend entrenched customs and hierarchies that are deconstructed by natural rights liberalism. Antebellum American abolitionists, who frequently appealed to the principles of the Declaration in calling for the immediate end of slavery, were on their era’s religious Left: in many ways they have much more in common with today’s contemporary Christian Left, including Unitarians (Unitarian churches at that time were heavily abolitionist). The country’s first feminist women’s rights advocates anchored their appeals to equality in the principles of the Declaration. The late nineteenth century Populists invoked the Declaration’s liberty and equality principles in calling upon the government to break up concentrations of economic power. In his “I Have a Dream” speech at the steps of the Lincoln Memorial during the March on Washington for Jobs and Freedom (1963), Martin Luther King, Jr. described the Declaration’s promise of equality as an as yet uncashed checks, a promissory note whose payment by the nation was long overdue. As the often forgotten title of the 1963 March on Washington rally suggests, King was calling for active federal government involvement in making the Declaration’s promise of equality a reality by the enacting of a broad array of public policies aimed at full employment, housing, education, and health care -- the very program that would soon be taken up by (liberal Democrat) President Lyndon B. Johnson’s “Great Society” social programs (the call for a radical augmentation of the national government powers and the extension of its public policy remit to achieve the Declaration’s promise of equality and freedom had been advanced ever since the Union victory in the Civil War, although that aspiration was largely abandoned by the country’s mainstream institutions with the end of post-Civil War Reconstruction (1877)).

This is another way of saying, in response to your question, that, in the American experience at least,

They were read aspirationally and open-endedly, especially after the Civil War, and the addition of the three “Civil War Amendments” to the U.S. Constitution, promising what Lincoln at Gettysburg (1863) called “a new birth of freedom.” This is something that conservatives, of course, have opposed. They have done so through elaborated theories that argue on behalf of certain rights as fundamental: their recent emphasis has been on controversially expansive understandings of a fetal right-to-life, an individual right to keep and bear arms, the right have their appeals to religious liberty rights trump countervailing claims to non-discrimination and civil rights, and on robust conceptions of property rights that set broad limits on the economic regulatory powers of government. At the same time, conservatives in the U.S. are strenuously contending that certain other rights that the U.S. Supreme Court has declared to be fundamental over the past fifty years or so are, in fact, not fundamental but, essentially, phony rights. These include rights to bodily autonomy and privacy entailing abortion rights and rights to same-sex intimacy and marriage, expansive understandings of the limits the U.S. Constitution places on government support for and involvement with religion, and the whole slate of “social rights” like rights to housing, clothing, and employment that constitute a major part of postwar international human rights conventions, declarations, and agreements. Contemporary conservatives have a pretty rigid conception of the sorts of things that are on that list of “right rights” and those that are not. American constitutional “originalism” has been one means conservatives have used to identify what is on their fixed list of fundamental rights -- which, for conservatives, is usually is confined to negative propositions or prohibitions (government shall not…) as opposed to positive proscriptions enjoining government action. That, of course, makes a certain amount of sense. But this has never been the actual American experience. Americans have always been promiscuous in making rights claims, in the freewheeling sense that one might expect in a robustly rights-conscious liberal democracy. In the end, these matters are determined politically, in light of the values and aspirations of the country and its people. In this sense, the American natural rights tradition is very different from the Roman Catholic natural law tradition which has become so significant to the constitutional theory of the contemporary Christian Right.

Certainly since World War II, but, actually, in its own way, going back at least to the Age of Revolutions of which the American Revolution was a part, this open-ended conversation about rights has always been transnational. I think that is probably a good thing, although, as I have written elsewhere,

through sub-rosa institutional maneuvers as opposed to -- rightly, and for the good -- via publicity, information, and moral suasion, especially of the sort that is rightly welcomed and encouraged by the political systems of free, sovereign, liberal democracies.

How do you see the role of the Supreme Court along with constitutional courts around the world in adopting a natural law approach in constitutional interpretation?

First of all, so far at least as the Declaration of Independence is concerned, it is far from clear that the natural law principles articulated in the Declaration as a justification for declaring independence from Great Britain authorize judicial institutions created later by the Constitution to appeal to the Declaration in exercising their judicial review powers to void laws as unconstitutional. Indeed, when the U.S. Supreme Court has been understood to be invoking natural law principles in voiding controversial laws (at least) over the course of American history -- which has been rare -- the Court has been criticized for departing from its positive law obligations under the Constitution, whose authority, after all, comes not from God, but from the positive law source of the sovereign American people (“We the People”). The Court’s justices have also been criticized for importing overly robust understandings of the content of natural law that just happen to align with their individual political objectives (as many would argue the contemporary Right is doing in appealing, including in U.S. courts, to “natural law”). This leads to the charge that the Court is acting not legally but politically, in ways that undermine the Court’s legitimacy. Things are complicated, however, because if courts repeatedly uphold laws that deeply offend people’s sense of right and wrong (as was the case with slavery), this too would undermine the legitimacy of the nation’s courts.

My way through this would be to say that, in the ordinary course of business, the courts -- especially in free, liberal democracies -- should base their rulings on principles of positive law. In the ordinary course of business, while occasionally controversial, this should align with people’s rough sense of justice, or at least not deeply offend it. If natural rights arguments are being repeatedly invoked by judges in controversial cases to advance important substantive propositions (rather than as background or setting out shared, consensus philosophical and political commitments and ideals), that is a sign of real problems in a polity; it is a sign that the law -- the nation’s fundamental law, its Constitution -- is no longer adequate to resolve contentious disputes.

That might be appropriate in extreme situations, and perhaps there are countries where that might be for the good, or even necessary, especially in the public sphere more generally. Robert Cover wrote an excellent book, Justice Accused (1975) on the ways that American judges in the antebellum U.S. weighed their duties to enforce the positive law with the egregious reality of chattel slavery. But, of course, the question was not resolved by these judges, but, ultimately, by politics: in this case, which involved an extreme injustice and a great moral evil, by the American Civil War.