Declaration of Independence: Justice

Introduction

Roy Clouser is my friend and partner (I’m the junior partner, just to be clear) in this effort to create a blog that addresses the issues facing philosophy. In the past couple of posts, I have began thinking on the subject of justice. Recently, I found a transcript of Roy’s lecture at Harvard Law School in October of 2007. He presents many insights into what our western culture considers to be justice and how to address this culture philosophically. A very short excerpt follows in which he speaks of the Declaration of Independence. Also, just to be clear, I believe it is rare for someone to be invited to give a lecture on justice at Harvard Law School!

I must hasten to say that this excerpt begins right after the introduction in which Dr. Clouser lays out his format for the content of the lecture.

A THIRD VIEW OF RIGHTS AND LAW: A critique of assumptions behind the Declaration and the Constitution The 13th Annual Kuyper Lecture for 2007, Harvard Law School 18th October 2007

natural law theory illustrated
This illustration does not necessarily reflect Dr Clouser’s description of natural law theory, but it does show something of how it is developed.

The Declaration’s Source for Rights

Let’s start with the Declaration’s version of natural law theory. The truth behind the words of that document may, I think, be summarized as follows. The truth is that all humans have a sense of justice. Every people, tribe, tongue, civilization, and culture that has ever existed recognized that it is a norm for life that people should “give to all their due” and be treated likewise by others. So I think it’s correct. Humans are “endowed by their Creator” with an awareness of this norm. And neither their awareness of it nor the norm itself are human inventions or anything they can make go away. Both seem instead to be “natural” and to generate obligations on people’s thoughts and actions whether they wish it or not. That is the element of truth I think the Declaration came close to getting right.

Is There A Universal Ought the Declaration Recognizes?

      But the Declaration doesn’t quite put the point the way I just did. It doesn’t say there is a norm for justice built into created reality, which all people have the ability to recognize. Nor does it identify that norm as the source of the obligation they feel to obey the statutes government enacts. The Declaration does not appeal to a universal norm that obliges all humans simply because they’re human. Rather, it skips the norm for justice and speaks only of rights.

This is a serious omission because such rights as it envisions could only result from the norm of justice. So as I see it, the Declaration gets things backwards. It assumes that people have rights and that those rights are the basis for justice. In fact unless people first recognized the norm of justice the whole notion of rights would make no sense. For a right can be nothing other than: a benefit or immunity that cannot be denied someone without injustice.

  Do Women and African Americans Have Rights?

   By getting the relation between the norm and rights backwards, the Declaration bases the authority for human law-codes on the subjective condition of individuals rather than on a universal norm. It was this significant distortion that led to arguments over exactly who is and isn’t born with rights. For example, in early US history political leaders actually debated whether women or African-Americans had rights. But such a debate would make no sense if rights were the result of a universal norm; in that case all people would have rights because the norm of justice holds for all people. But the Declaration reversed this and tried to make the rights of individuals the basis for knowing what is just. Then – sadly enough – it did make sense to argue over who was and was not born with those rights.

Does the Declaration Think Social Organizations Have Duties?

     The individualism of the Declaration is also deficient in yet another way. By making rights the possessions only of individuals, it fails to see that social organizations have rights (and obligations) as well. It is not only individuals who have rights and obligations vis a vis government. But so do marriages, families, churches, schools, businesses, and so on. For are not they, too, recipients of free speech and press? Are they not also to enjoy freedom from search and seizure? Should not each be guaranteed the freedom to conduct its own internal affairs rather than be dictated to by government? And do they not also have an obligation to obey the laws government enacts?

By speaking only of individuals and government, the Declaration has bequeathed to America a habit of thinking in a truncated way that misses an important point. That point stems from the universality of the norm of justice. That is, justice requires that there be rights and obligations not just between individuals and government but between individuals, between individuals and all types of organizations, and among the various organizations as well.

I hope this gives you some grist for your mill. We will continue this in my next post.

Capital Punishment

Capital Punishment: Pros / Cons

Capital Punishment Background

Over the course of the 20th century, almost every industrialized nation has abandoned capital punishment except the US. This arguably points to the conclusion the rest of the western world has taken the moral high road. Meanwhile, the US remains relatively barbaric. “Besides”, we are told over and over, “there is no conclusive evidence that capital punishment (also known popularly as the death penalty) deters murder.” The Christian political activist might address the issue in the following way. (For an extensive review of the current status of the death penalty in the US, click here)

Capital Punishment
Death Row Inmate

            The law of Moses provides the first Scriptural basis for the execution of the convicted person in cases of premeditated murder. The fact that the victim bore the image of God forms the bedrock of this particular law. Further, the doctrine of a human being bears the image of God continues in the New Testament. The Scriptural teaching re the image of God in humanity means all humans have equal rights (Gen. 1:27 –31, Acts 17:26, Gal 3:28). If, as we believe, the image of God in humanity is the ground for equal rights, then how can we ignore it when seeking a Biblical understanding of the issues surrounding first degree murder?

The Need for Deterrence?

I know someone will say that capital punishment deters other would be murderers. However, so long as this doctrine is the basis for capital punishment, the deterrence argument need not be raised. The image of God in humanity makes the reason for execution that this is what the murderer deserves.  The wonder of the image of God in human beings will best deter others from premeditated killing.

            How do we explain the fact that so many nations have abandoned capital punishment? In my opinion, this change demonstrates just one of many shifts among western nations away from broadly biblical assumptions for democracy to broadly humanistic ones. Where God’s Kingdom that is not the highest value, some single aspect of human nature asserts itself. Humanism urges the acceptance of the teaching regarding the greatest good. The single aspect of a human being could be such as rationality, feeling, or will. The problem arises that there is no higher value than human life and execution is itself just another crime.

Whose Life Is Worth More?

Some version of the humanist creed also seems to underlie the compromise view about capital punishment now popular in the US. The compromise urges the avoidance of a death sentence. Humanism reaches a striking conclusion. The argument revolves around who or how many
victims there are. This criterion will or will not warrant the use of the death penalty. On this view, the death penalty is deserved, say, if the Pope or the President or 25 people were murdered. One ordinary person? Then no.

The humanist creed asserts that many victims or a famous victim “contained” more of whatever human quality is being regarded as the highest value. Then the wrong involved in taking the murderer’s life is outweighed on the justice scales by the greater wrong committed by his crime. From the biblical view, however, there are no degrees of being in God’s image; each human life has equal value and should enjoy equal protection. The premeditated destruction of any person should be equally punished. That holds no matter whether it was one person or many, the President or a homeless street person. (These thoughts and more are found here.)

A Safeguard

Perhaps you agree with all I’ve said so far. But you would still object that the danger of executing the wrong person outweighs all else. This is a serious point. It focuses our thoughts on the need for new safeguards in our justice system.

            Presently a death sentence carries an automatic appeal so that a higher court can review the case to make sure there were no errors in legal procedure at the trial. That is not enough.

The first thing we need to add is a review of the facts and evidence. A review board formed in every public defenders’ office (but not limited to only cases defended by that office) will do the review. Evidence tainted by illegal means will not stand in review. I judge this evidential review is as necessary as to catch unfair trial procedures.

            Secondly, we need to impose this penalty only when the evidence is not merely “beyond a reasonable doubt.” It must be beyond all doubt. And there are such cases. The evidence is some cases is irrefutable. These are cases where a defendant is caught on sound, color, videotape, has the victim’s blood on him, and/or is caught in the act. According to this proposal, when the evidence is anything less than completely certain, the sentence may be for life, but the death penalty should not be allowed.

Public Justice : Affordable Care Act

Admittedly, many controversies have swirled around the Affordable Care Act. Yet, there is a more basic issue, namely public justice. It has not received the attention it deserves. But although the issue of public justice has receded into the background, it still remains a driving motivation behind much of the controversy concerning the Act.

A Basic Issue : The Proper Scope of Government

We should not confuse this issImage result for public justiceue with people’s opinions of the actual provisions of the Act. Just about everyone thinks the Act needs to have been much better. But the issue I’m pointing to is whether it falls within the proper scope of government to pass any act at all to make health care accessible to its citizens. Some opponents of the Act think government has absolutely no responsibility in health matters. Meanwhile, others think that state governments may have such a responsibility but the federal government does not.

First Objection

Let’s consider first the objection against any and all government involvement in health matters.

This issue was actually addressed in one of the founding documents of our nation, the Declaration of Independence. The first of the universal rights it mentions is the right to life, followed by the rights to liberty and the pursuit of happiness. The clause then closes with the assertion “that it is to secure these rights that governments are instituted among men.”

It would be wildly implausible to argue that this clause intends to assign to government the responsibility of protecting life only from threats due to war or crime. The need for government regulation to protect public health was clear to the American colonists early on.  For example, Cotton Mather advocated compulsory inoculations in Massachusetts Bay Colony in 1721. If it isn’t a government responsibility to see to the safety of food, water, air, transportation, and medicines, upon what institution of society does that responsibility fall?

Second Objection

The second objection agrees that the protection of life is a responsibility of government, but maintains that it should fall entirely to state governments rather than to the federal government. Those who hold this position usually do so on the grounds that the Constitution does not specifically delegate any such authority to the federal government.  Furthermore, it specifically requires any power it does not delegate to the federal government to remain with the states. Fox News analyst Andrew Napolitano argues this way, for example. In an article written for the blog  LewRockwell.com, Napolitano says that “the power to regulate for health, safety, welfare, and morality” should be “reposed with the states,” and that there should be “no federal police power” whatever.

But is such a position really tenable or is it a way in which the Constitution has become inadequate for modern life? Can each state reasonably be expected to inspect all roads, buses, trains, elevators, bridges, airplanes, foods, and medicines, as well as deal with epidemics, air pollution, drug enforcement, and forest fires? Is it plausible to have as many as fifty different standards in the same country governing each of these needs?  And does it make sense to say that even where these issues cross state lines the federal government is to have “no police power” as Napolitano asserts?

An Approach to Public Justice that is Almost 500 Years Old

In matters of health and safety, as in so many others, we continue to be hobbled by the way the writers of the Constitution replaced the Calvinist idea of sphere sovereignty with the idea of competing governments as the chief means of forestalling totalitarian governance. And the course of history since has shown just how unworkable it can be to have fifty legislatures and police forces enacting and enforcing contrary laws within the same nation. (As an example, see the American Bar Association’s article regarding the ethics of the marijuana laws now in effect.)

Sphere Sovereignty

“Sphere Sovereignty” is the name Abraham Kuyper gave to John Calvin’s insight that the New Testament recognizes a number of distinct kinds of God-given authorities in human life: the authority of parents in a family, owners in a business, clergy in the church, and officials in the state, for example. Each type of authority relates to a particular aspect of life that is its proper “sphere.” Then each type should enjoy a relative immunity from interference by the other types of authority. Moreover, there is no one type that is supreme over the others or the source of all the others. The reason for that is only God is supreme over them all and the source of them all.

Consequently, government must not do what Calvin called “over leap the prescribed bounds” of its proper authority.  Its proper sphere is recognized to be that of public justice. This means that the way to avoid totalitarian government is by framing our laws so as to restrict governmental power to matters of public justice.  Instead, we have attempted this  by creating competing states within the same body politic. Calvin puts it this way:

Hence, he only who directs his life to [God’s calling] will have it

properly framed; because free from the impulse of rashness, he will

not attempt more than his calling justifies, knowing that it is unlawful

to over leap the prescribed bounds… The magistrate will more willingly

perform his office, and the father of a family confine himself to his

proper sphere… (Inst. III, x, 6)

For though the Lord declares that a ruler to maintain our safety is the

highest gift of His beneficence, and prescribes to rulers themselves

their proper sphere, he at the same time declares, that of whatever

description they may be, they derive their power from none but him.

(Inst. IV, xx, 25)

Conclusion

On this view, the central issue for government is not whether there is one or many or how big a government is, but whether it recognizes its authority as limited to the sphere of public justice. Having one overarching government that recognizes its proper limits beats having fifty little ones that don’t. The central issue for health care is whether it is a public injustice to leave millions of citizens without access to the means of safeguarding the very first right the Declaration guarantees to them. 

Roy Clouser                                        Roy Clouser

Resident Philosopher at Christian Leaders Institute

Professor Emeritus of The College of New Jersey

Former Trustee of the Center for Public Justice.