The Dangers of Constitutional Theology

Rick Santorum’s surprising return to relevance should justify a second look at some of his… crazier beliefs. This The New York Times ably provides, per Molly Worthen, who questions whether his prolonged discussions of “natural law” are anything other than a way to sell Catholic-style theocracy to Tea Party-infused Republicans. I’m more troubled by his recent attempt to characterize the President (through “ObamaCare”) as trading the foundational notion of God-given rights for government-created rights, and his corresponding argument that only the former are permanent, and immune from government interference. The larger thesis, that rights cannot exist without God, shares a thesis with some other conservative schools of thought, all of which ought to in fact be viewed as dangerous to the rights of men.

First, Mr. Santorum appears alone in his belief that God can confer rights on men without mediation through some secular power structure. The Magna Carta itself — from which the rights of Englishmen so cherished by the Founders derive — was drafted to secure to the people, through the crown, rights recognized by God. And Catholic theology plainly holds that Christ’s law can only be discharged through human intermediaries. Even if God creates rights, man administers them.

Separately, Santorum’s conclusion that the creation of separate, government rights somehow dilutes rights of a more permanent basis lacks foundation in American law. The Constitution creates certain rights which the people may not abridge — including, per the Supreme Court and contrary to Santorum’s particularly deranged philosophy, the right to accessible contraception — but these are inherent in the document, based on the theory that the Founders pre-committed us to certain non-derogable rights. As legally permanent, these rights exist on the highest plane of American law. On a lower plane are those created or destroyed with regularity by the Congress: the superstructure built steadily above the “floor” provided by the Constitution. These include, for example, welfare rights, and other “new property” concerns, but go so far as to include various remedial vehicles that exist to discharge other fundamental rights, or to fulfill promises made by the Founders but not brought by them to completion. Among others, the right to discharge debts by bankruptcy is contemplated by the Constitution, but not accomplished by the document itself. If the legislative creation of similar rights consistent with the structure and intent of the Constitution somehow dilutes the whole, the compact cannot be administered without accomplishing its own destruction. Dividing constitutional concepts between the sacred rights created by the Constitution, and profane rights created by constitutional process but somehow inimical to it, simply does not make sense.

This is especially so if the Constitution is itself divinely inspired — as believed by Mormons, and specifically, by devotees of the mad Skousen — since all legislative creations of the constitutional process should share in that grace. But this notion of some latter-day divinity of government is separately problematic. If constitutional rights are made and handed down by God, disputes over government automatically become disputes over religion, investing average political debates with eschatological and doctrinal baggage detrimental to the larger society. (Such magnifying rhetoric explains, for example, how quickly the debate over healthcare reform became a debate over “tyranny.”) The Constitution is emphatically a document for us all, written “to define the liberty of all, not to mandate our own moral code.” If constitutional debates can be resolved by reference to private, factional, or sectarian morality, rather than catholic concepts belonging to all Americans, we have abandoned the notion of a Constitution and a country for all citizens. Though this is, probably, exactly what Rick Santorum has in mind.

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One comment

  1. I’ve never understood how that ‘God-given Constitution’ theory even makes sense internally. What happens when the Constitution is amended, for example? Is that a new instance of divine inspiration each time it happens, or is it only the rights in the original document (such as they are) that are sacred?

    And why even include an amendment procedure in the first place? If the original document was divinely inspired, it would presumably be perfect as it was.

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