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Rights And Duties: Reflections On Our Conservative Constitution Rights And Duties: Reflections On Our Conservative Constitution by Russell Kirk
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“Two centuries ago, the United States settled into a permanent political order, after fourteen years of violence and heated debate. Two centuries ago, France fell into ruinous disorder that ran its course for twenty-four years. In both countries there resounded much ardent talk of rights--rights natural, rights prescriptive. . . .

[F]anatic ideology had begun to rage within France, so that not one of the liberties guaranteed by the Declaration of the Rights of Man could be enjoyed by France's citizens. One thinks of the words of Dostoievski: "To begin with unlimited liberty is to end with unlimited despotism." . . .

In striking contrast, the twenty-two senators and fifty-nine representatives who during the summer of 1789 debated the proposed seventeen amendments to the Constitution were men of much experience in representative government, experience acquired within the governments of their several states or, before 1776, in colonial assembles and in the practice of the law. Many had served in the army during the Revolution. They decidedly were political realists, aware of how difficult it is to govern men's passions and self-interest. . . . Among most of them, the term democracy was suspect. The War of Independence had sufficed them by way of revolution. . . .

The purpose of law, they knew, is to keep the peace. To that end, compromises must be made among interests and among states. Both Federalists and Anti-Federalists ranked historical experience higher than novel theory. They suffered from no itch to alter American society radically; they went for sound security. The amendments constituting what is called the Bill of Rights were not innovations, but rather restatements of principles at law long observed in Britain and in the thirteen colonies. . . .

The Americans who approved the first ten amendments to their Constitution were no ideologues. Neither Voltaire nor Rousseau had any substantial following among them. Their political ideas, with few exceptions, were those of English Whigs. The typical textbook in American history used to inform us that Americans of the colonial years and the Revolutionary and Constitutional eras were ardent disciples of John Locke. This notion was the work of Charles A. Beard and Vernon L. Parrington, chiefly. It fitted well enough their liberal convictions, but . . . it has the disadvantage of being erroneous. . . .

They had no set of philosophes inflicted upon them. Their morals they took, most of them, from the King James Bible and the Book of Common Prayer. Their Bill of Rights made no reference whatever to political abstractions; the Constitution itself is perfectly innocent of speculative or theoretical political arguments, so far as its text is concerned. John Dickinson, James Madison, James Wilson, Alexander Hamilton, George Mason, and other thoughtful delegates to the Convention in 1787 knew something of political theory, but they did not put political abstractions into the text of the Constitution. . . .

Probably most members of the First Congress, being Christian communicants of one persuasion or another, would have been dubious about the doctrine that every man should freely indulge himself in whatever is not specifically prohibited by positive law and that the state should restrain only those actions patently "hurtful to society." Nor did Congress then find it necessary or desirable to justify civil liberties by an appeal to a rather vague concept of natural law . . . .

Two centuries later, the provisions of the Bill of Rights endure--if sometimes strangely interpreted. Americans have known liberty under law, ordered liberty, for more than two centuries, while states that have embraced the Declaration of the Rights of Man and of the Citizen, with its pompous abstractions, have paid the penalty in blood.”
Russell Kirk, Rights And Duties: Reflections On Our Conservative Constitution
“To narrow natural rights to such neat slogans as "liberty, equality, fraternity" or "life, liberty, property," . . . was to ignore the complexity of public affairs and to leave out of consideration most moral relationships. . . .

Burke appealed back beyond Locke to an idea of community far warmer and richer than Locke's or Hobbes's aggregation of individuals. The true compact of society, Burke told his countrymen, is eternal: it joins the dead, the living, and the unborn. We all participate in this spiritual and social partnership, because it is ordained of God. In defense of social harmony, Burke appealed to what Locke had ignored: the love of neighbor and the sense of duty. By the time of the French Revolution, Locke's argument in the Second Treatise already had become insufficient to sustain a social order. . . .

The Constitution is not a theoretical document at all, and the influence of Locke upon it is negligible, although Locke's phrases, at least, crept into the Declaration of Independence, despite Jefferson's awkwardness about confessing the source of "life, liberty, and the pursuit of happiness."

If we turn to the books read and quoted by American leaders near the end of the eighteenth century, we discover that Locke was but one philosopher and political advocate among the many writers whose influence they acknowledged. . . .

Even Jefferson, though he had read Locke, cites in his Commonplace Book such juridical authorities as Coke and Kames much more frequently. As Gilbert Chinard puts it, "The Jeffersonian philosophy was born under the sign of Hengist and Horsa, not of the Goddess Reason"--that is, Jefferson was more strongly influenced by his understanding of British history, the Anglo-Saxon age particularly, than by the eighteenth-century rationalism of which Locke was a principal forerunner. . . .

Adams treats Locke merely as one of several commendable English friends to liberty. . . .

At bottom, the thinking Americans of the last quarter of the eighteenth century found their principles of order in no single political philosopher, but rather in their religion. When schooled Americans of that era approved a writer, commonly it was because his books confirmed their American experience and justified convictions they held already. So far as Locke served their needs, they employed Locke. But other men of ideas served them more immediately.

At the Constitutional Convention, no man was quoted more frequently than Montesquieu. Montesquieu rejects Hobbes's compact formed out of fear; but also, if less explicitly, he rejects Locke's version of the social contract. . . . It is Montesquieu's conviction that . . . laws grow slowly out of people's experiences with one another, out of social customs and habits. "When a people have pure and regular manners, their laws become simple and natural," Montesquieu says. It was from Montesquieu, rather than from Locke, that the Framers obtained a theory of checks and balances and of the division of powers. . . .

What Madison and other Americans found convincing in Hume was his freedom from mystification, vulgar error, and fanatic conviction: Hume's powerful practical intellect, which settled for politics as the art of the possible. . . . [I]n the Federalist, there occurs no mention of the name of John Locke. In Madison's Notes of Debates in the Federal Convention there is to be found but one reference to Locke, and that incidental. Do not these omissions seem significant to zealots for a "Lockean interpretation" of the Constitution? . . .

John Locke did not make the Glorious Revolution of 1688 or foreordain the Constitution of the United States. . . . And the Constitution of the United States would have been framed by the same sort of men with the same sort of result, and defended by Hamilton, Madison, and Jay, had Locke in 1689 lost the manuscripts of his Two Treatises of Civil Government while crossing the narrow seas with the Princess Mary.”
Russell Kirk, Rights And Duties: Reflections On Our Conservative Constitution
“The trouble with purging the school curriculum of religious knowledge is that ultimate questions cannot be answered without reference to religious beliefs or at least to philosophy. With religion expelled from the schools, a clear field was left for the entrance of the mode of belief called humanitarianism, or secular humanism--the latter a term employed by the cultural historian Christopher Dawson. During the past four decades and more, the place that religion used to hold in American schooling, always a rather modest and non-dogmatic place, has been filled by secular humanism. Its root principle is that human nature and society may be perfected without the operation of divine grace. . . .

In his book A Common Faith (1934), [John] Dewey advocated his brand of humanism as a religion. "Here are all the elements for a religious faith that shall not be confined to sect, class, or race," he wrote. "Such a faith has always been implicitly the common faith of mankind. It remains to make it explicit and militant."

Much more evidence exists to suggest that humanitarianism, or secular humanism, should be regarded in law as a religion, with respect to both establishment and free exercise in the First Amendment. It is this non-theistic religion, hostile to much of the established morality and many existing American institutions, that has come close to being established as a "civil religion" in American public schools.”
Russell Kirk, Rights And Duties: Reflections On Our Conservative Constitution
“True law necessarily is rooted in ethical assumptions or norms; and those ethical principles are derived, in the beginning at least, from religious convictions. When the religious understanding, from which a concept of law arose in a culture, has been discarded or denied, the laws may endure for some time, through what sociologists call "cultural lag"; but in the long run, the laws also will be discarded or denied.

With this hard truth in mind, I venture to suggest that the corpus of English and American laws--for the two arise for the most part from a common root of belief and experience--cannot endure forever unless it is animated by the spirit that moved it in the beginning: that is, by religion, and specifically by the Christian people. Certain moral postulates of Christian teaching have been taken for granted, in the past, as the ground of justice. When courts of law ignore those postulates, we grope in judicial darkness. . . .

We suffer from a strong movement to exclude such religious beliefs from the operation of courts of law, and to discriminate against those unenlightened who cling fondly to the superstitions of the childhood of the race.

Many moral beliefs, however, though sustained by religious convictions, may not be readily susceptible of "scientific" demonstration. After all, our abhorrence of murder, rape, and other crimes may be traced back to the Decalogue and other religious injunctions. If it can be shown that our opposition to such offenses is rooted in religion, then are restraints upon murder and rape unconstitutional?

We arrive at such absurdities if we attempt to erect a wall of separation between the operation of the laws and those Christian moral convictions that move most Americans. If we are to try to sustain some connection between Christian teaching and the laws of this land of ours, we must understand the character of that link. We must claim neither too much nor too little for the influence of Christian belief upon our structure of law. . . .

I am suggesting that Christian faith and reason have been underestimated in an age bestridden, successively, by the vulgarized notions of the rationalists, the Darwinians, and the Freudians. Yet I am not contending that the laws ever have been the Christian word made flesh nor that they can ever be. . . .

What Christianity (or any other religion) confers is not a code of positive laws, but instead some general understanding of justice, the human condition being what it is. . . .

In short, judges cannot well be metaphysicians--not in the execution of their duties upon the bench, at any rate, even though the majority upon the Supreme Court of this land, and judges in inferior courts, seem often to have mistaken themselves for original moral philosophers during the past quarter century. The law that judges mete out is the product of statute, convention, and precedent. Yet behind statute, convention, and precedent may be discerned, if mistily, the forms of Christian doctrines, by which statute and convention and precedent are much influenced--or once were so influenced. And the more judges ignore Christian assumptions about human nature and justice, the more they are thrown back upon their private resources as abstract metaphysicians--and the more the laws of the land fall into confusion and inconsistency.

Prophets and theologians and ministers and priests are not legislators, ordinarily; yet their pronouncements may be incorporated, if sometimes almost unrecognizably, in statute and convention and precedent. The Christian doctrine of natural law cannot be made to do duty for "the law of the land"; were this tried, positive justice would be delayed to the end of time. Nevertheless, if the Christian doctrine of natural law is cast aside utterly by magistrates, flouted and mocked, then positive law becomes patternless and arbitrary.”
Russell Kirk, Rights And Duties: Reflections On Our Conservative Constitution
“Today, as in the past, we ought to remind ourselves that the true natural law is not a mere congeries of appetites, and that it is not from the vagrant musings of the hour's judges that the natural law derives its high authority. . . .

The Catholic tradition of natural law, to borrow a phrase from Sir Ernest Barker, holds that "law--in the sense of last resort--is somehow above lawmaking." This understanding, in effect, still prevails among many Americans, not all of them Catholics. They agree with Justice Frankfurter that natural law is "what sensible and right-minded men do every day."

Yet often the public's apprehension of the teachings of natural law is much decayed, in part because of the total secularization of instruction in public schools. . . .

Human nature is not vulpine nature, leonine nature, or serpentine nature. Natural law is bound up with the concept of the dignity of man, and with the experience of humankind ever since the beginning of social community.”
Russell Kirk, Rights And Duties: Reflections On Our Conservative Constitution

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