What’s The Real Origin Of Originalism?

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Alan Keyes Former Assistant Secretary of State
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The error of those who reason by precedents drawn from antiquity, respecting the rights of man, is that they do not go far enough into antiquity. They do not go the whole way. They stop in some of the intermediate stages of a hundred or a thousand years, and produce what was then don as a rule for the present day. This is no authority at all…. but if we proceed on, we shall at last come out right; we shall come to the time when man came from the hand of his Maker. What was he then? Man. Man was his high and only title, and a higher cannot be given him….

We are now got at the origin of man, and at the origin of his rights….

If the mere name of antiquity is to govern in the affairs of life, the people who are to live a hundred or a thousand years hence, may as well take us for a precedent, as we make a precedent of those who lived a hundred or a thousand years ago. …It is authority against authority all the way, till we come to the divine origin of the rights of man at the creation. Here our enquiries find a resting-place, and our reason finds a home. If a dispute about the rights of man had arisen at the distance of a hundred years from the creation, it is to this same source of authority they must have referred, and it is to this same source of authority that we must now refer. (Thomas Paine, The Rights of Man)

In the debate over SCOTUS nominee Judge Brett Kavanaugh’s fitness to be a Supreme Court Justice, self-professed conservatives often praise him as an “originalist”: who will construe the Constitution in light of the original meaning of its words.

Every time I hear the word “originalist” used in this way, however, I remember Thomas Paine’s ringing rejection of the notion that the words of some past generation should simply be assumed to govern succeeding generations.

Common sense concurs with the argument Paine makes in the passages cited above. He does not altogether reject tradition. Rather, he questions the logic that sees the past inhabited by some an unquestionable authorities, and he looks for and to the ultimate standard of authority that reflects the persistent nature of things, including human beings.

In addition to the passage of time, that standard must take account of the indispensable assumptions and routines of perception and thought that make things accessible to our understanding.

Paine wrote to criticize the traditionalism of the English philosopher Edmund Burke. Burke sympathized with American colonists aggrieved by British government policies that disrespected their self-rule. He saw those grievances as a clash between the British government’s assertion of control and “the character of the Americans” in which “a love of freedom is the predominating feature, which marks and distinguishes the whole.”

Addressing Parliament in 1775 he observes that the “fierce spirit of liberty is stronger in the English colonies probably than in any other people of the earth.” He claimed that Americans were “not only devoted to liberty, but to liberty according to English ideas, and on English principles. Abstract liberty, like other mere abstractions, is not to be found.”

Burke’s repute and influence among American conservatives during my lifetime may be one of the reasons many of them assert a view of the American founding that stresses a passionate attachment to freedom as if it is the primary rubric of our national identity.

But when, “in the name, and by the authority of the good people of these colonies,” the representatives of the United States of America declare those colonies “free and independent states,” they make no mention of freedom. In the Declaration, they refer to it as an existential condition (free people, free states) not a principle of action or government.

As authoritative premises for action, the Declaration speaks first of laws, then of truths and finally of rights.

Contrary to Edmund Burke’s assessment of their character, the American patriots did not consider some passion for freedom to be among the justifying premises of their revolt.

They speak of themselves as a free people, but in the context of evoking the standard of just governance that ought to constrain government power. They speak of “the laws (rules constraining and directing mere freedom) of nature and of nature’s God”; the equality of all human beings in view of God’s lawful will; and the purpose of government to provide for the security of those who, abiding in God’s will, do what is right according to those laws.

This understanding of just government puts right action (action according to the standard determined by God’s will) above freedom. The Declaration’s authors evoke it to in a contest that substantiates the Declaration’s reference to the “good people of the colonies.”

The good people are those abiding by God’s laws. Their actions are rights, properly so-called because they involve actions demanded and therefore authorized by laws the highest possible authority determined and promulgated. That ultimate authority vests the good people of the colonies with lawful authority as they take it upon themselves to reject government that violates God’s laws, denying and disparaging their right actions.

That same lawful authority mandates that they go on to establish a government that represents and honors their goodwill as people determined to abide by God’s rule.

To carry out this mandate, the patriots of America’s Founding generation produced the Constitution of the United State. How, then, can that document be construed without reference to the premises and terms of that original mandate—clear in the premises and principles of law, equality and rights that justifies the American Revolution?

The term “originalism” thus refers rather to those premises and principles, articulated in the Declaration of Independence; premises and principles that, in turn, depend not on the authority of the people who made the revolution but the God who made and still makes them, and us and all humanity.

Under the Constitution of the United States, wouldn’t a truly conservative justice be the one who understands the duty to conserve, in respect of the Constitution, for the source and origin of the authority the people of the United States, from which that document derives its own?

For the Constitution’s aim is not to serve their freedom, but to preserve and perpetuate their unalienable right of liberty, which, like all such rights, takes as its premise from the rule of God that obliges us to use our freedom for right, not wrongdoing.

Dr. Alan Keyes is a political activist, prolific writer, former diplomat, and the founder of LoyaltoLiberty.com

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.