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Friday, September 10, 2004

Self Evident?

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I am back in the law school saddle for what seems to be my best year yet! This years line-up is Constitutional Law, Evidence and (*sigh*) Corporations (you can't win 'em all).

Constitutional Law.

The God Father of all legal subjects, don't you think? Most Americans are at least passingly familiar with it. We all know that there is some pre-amble stuff, we get to say what we want, have a gun, remain silent, get an abortion, and engage in private, adult activities in our bedrooms. But, as intrepid students of the law, our con law prof thinks we ought to know more than this.

We begin at the beginning, Marbury v. Madison, (which is our first look at what will come to be known as "That darn Supreme Court making stuff up out of whole cloth!") and move along into the nebulous realm of "kinder and gentler" Socratic examination. Our prof, a federal judge, wants us to question. He wants us to be "intellectually honest" with ourselves. He wants us to think. Needless to say, I am beside myself with Christmas-morning-type joy at the very prospect. I could hardly sleep that night from all my intellectually honest thinking of questions.

Here, for your examination is one of those very thoughts:

I think that the use of the words "Self Evident" in the Declaration of Independence was a stroke of genius.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Our prof mentioned this language in an off-hand way and characterized it as skirting the issue. Rather like the idea that the writers weren't really sure what they wanted to say so they just went with "Well, isn't it obvious?" That's one way to look at it I guess, since we don't know certainly what was meant. I don't like that take, though. It's too accidental.

I prefer to think that the statement was intended to be enduring and relevant for hundreds of years, just like it's successor, The U.S. Constitution. Those things which are "unalienable" today may not resemble what the founders had in mind in 1776. Had they made a laundry list, instead of a just saying "There's a bunch and here are a few to give you the idea" ("among these are Life, Liberty and the pursuit of Happiness.") they may well have limited the relevance of their thinking. Dated it. Made it an anachronism today.

Instead, they left it to us to determine what is "self evident" in 2004. And what will be "self evident" in 2050. That was not a waffle or a wiggle or a lazy dodging of the issue. That was pure genius.

When we are thinking about the constitution and what it was meant to accomplish we have to put it in a context. The Declaration of Independence makes a really good place to start putting that context together. It enumerates what we thought was important, what we wanted to achieve and why. To think of it as just a casual, partially assembled half-a-thought... well, I am not going to do that. I may suffer for my pro-court, things keep changing, post-modernistic thinking next time I speak up in class. But my thinking will remain all of those things that my prof wants from me; Inquisitive, thoughtful and intellectually honest.

I know what you're thinking, "That was obvious, wasn't it?"


Blogger Christopher Chopin said...

Not at all obvious. And entirely the point of the document. The founders weren't suggesting self evidence to any free thinking reasonable person. They weren't suggesting rights or privileges so important as to be self-evidently requisite to our nation.

They were suggesting that the mere opening of one's eyes gave proof of the existence of these ideals outside the world of men, and in some greater firmament of the universe.

And its the most dangerous idea yet. Its the very reason why Marshall was able to at the same time claim to be appealing to some rule of law while inventing his own system of judicial action, and to strike down the Congress' attempt to do so, imho, as politically ineffective. Because its what allows a judge to ignore the written law and appeal to some higher, more invisible, and yet somehow more authoritative rule.

After all, even the founders weren't sure of them all, or they would've used an exhaustive list, right?

The problem with the passing of the last 200+ years as regards the system, however, is that these founders were possessed of the idea of a Rousseauian state of nature and a natural law corresponding that would outlast any written document, and they assumed not that the law they codified was their instant interpretation of it, but that they were gaining visions of the divine law throughout. Codswallop. But Antonin be damned, it remains the achilles heel of the true originalist. It isn't that its half a thought. Its that they admit they didn't write the whole thing down, and its left to any tom, dick, or nazi to guess at what the other half might've been...and to claim personal knowledge of the truth of that assertion.

7:05 PM  

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