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America Was Not Founded by Ayn Rand

America Was Not Founded by Ayn Rand Erin Nekeris

Erin Nekeris

Jason Jones and John Zmirak - published on 02/18/14

The natural law tradition has been central since our country's founding and throughout her greatest reform movements.

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The men who signed the American Declaration of Independence, and those who later wrote its Constitution, were by no means a mass of skeptical Enlightenment philosophes who dismissed the verdict of history and tradition, along with the Aristotelian tradition of natural law reasoning.  The Deists among the Founders were a small and cautious minority among an overwhelmingly orthodox Protestant body.  Hence if we seek to interpret America’s founding documents according to their original intention, we must see that its concepts of “liberty” and “equality” were meant to be read in a Christian context that took for granted the traditional tenets of natural law.  The meaning we give to “liberty” and “the pursuit of happiness” must be colored by that tradition.  “Liberty” in this sense is the freedom to exercise one’s natural powers as they were intended by the Creator, and as reason tells us human beings ought to use them. (Hence suicide, and drug addiction, and prostitution, are not activities that our liberty grants us the God-given right to practice.)  Likewise, the “happiness” we must be free to pursue is the happiness proper to a human being—which is incompatible with life as a chattel slave, or as a member of a race subject to segregation.   

The founders of America’s free government firmly believed in both the dignity of the person and in the existence of a timeless, rationally knowable natural law that reflected the intentions of the Creator—which most of them thought could be known even more reliably through the study of sacred scripture.  Indeed, the Constitution’s famous refusal to establish a single church in the United States was the fruit of a well-founded Protestant concern for liberty of worship—and not of a Deist disdain for outmoded religious dogmas.

The overpowering legitimacy which most Americans for most of our history granted the appeal to religious sources as ways to correctly interpret the rights asserted by the nation’s founding documents can be seen in the extended national argument over slavery.  In the course of this decades-long debate, pamphleteers, scholars, and legislators made repeated appeals to the Bible, both in defense of slavery, and in building up the powerful abolitionist movement, which found its most reliable spokesmen among the ministers of New England.  So critical were churchmen to the political debate over the moral status of slaves that religious denominations, such as the Baptists, split into southern and northern denominations over this question. Classical formulations of natural law, such as Aristotle’s, had made room for slavery—the cornerstone of the social order in classical Greece, which only the radical Sophists would dare to question. But the Christian notion of the person as the image of God, redeemed and elevated to sonship with God through the incarnation of the Son of God in the form of a human person, had rendered slavery an anomaly, a pagan holdover that could be rendered repugnant to Christians through prophetic speech and action. The first great abolitionist movement, which arose in England under the leadership of William Wilberforce, was wholly the product of the Methodist movement in English churches.

As the abolitionist movement grew in strength, its leaders would use the Declaration as its chief rhetorical weapon, pointing out the stark hypocrisy of slave masters who cherished their “liberty.” While they never won a national consensus for outlawing slavery, the abolitionists did successfully render that institution disgraceful to most non-Southerners, such that Americans of other regions opposed its expansion into new, Western states—and were outraged when the Fugitive Slave Act compelled Northern, free states to act as slave catchers. The election of Abraham Lincoln was the expression of this outrage. While he fought first to save the Union, Lincoln saw in the midst of war an opportunity: by tying the fight for Union to the cause of Emancipation, he made of the Civil War a crusade for America’s founding principles—which relied for their legitimacy on the existence of a transcendent moral order (the laws of “Nature’s God”).

The post-war Jim Crow laws that were enacted throughout the country (not just the South) prevented the full recognition of the rights of non-white persons. It would take another century for the Civil Rights movement to force Americans to take a more rigorous look at the principles upon which our country rests.  Many of their opponents tried to paint the Civil Rights protestors as anarchist or Communist agitators—citing the cynical use by the American Communist Party of real racial grievances to recruit new party members. But because our very existence as a nation was only justified by this set of transcendent moral laws, Dr. Martin Luther King, Jr., was able to make the case that equal rights for all was a patriotic principle. Despite the bitter resistance which claimed King’s life, America was able to enact full, legal equality for all without tearing itself apart.

Martin Luther King, Jr. did not rely on Marxist class analysis or ethnic self-assertion when he called for civil rights from the Birmingham Jail, but cited the great Western and Christian tradition:

“A just law is a man-made code that squares with the moral law or the law of God… An unjust law is a code out of harmony with the moral law.  To put it in the terms of Saint Thomas Aquinas: ‘An unjust law is a human law that is not rooted in eternal law and natural law.’” (Martin Luther King, Jr., “Letter from a Birmingham Jail”)

Because he cited the core principles of our country and our culture, King’s arguments prevailed.

America is not the first or only country to recognize a transcendent moral order. In fact, the realization that positive laws must accord with (or bow to) the laws of heaven goes all the way back to the roots of Western culture—to Classical Greece. Sophocles put this awareness of a transcendent law in the mouth of Antigone, who sacrifices her life to disobey King Creon’s unjust edict.  In the play, her brother, Polyneices, committed treason by attacking the city of Thebes, and died in battle.  Creon decides to impose on Polyneices the ultimate punishment—to deny his soul rest in the underworld by refusing him proper burial.  His body is left to the dogs and crows, and the death penalty is promised for anyone who dares to inter him. Antigone confronts the king, whose power is theoretically absolute, and insists that his laws are subject to an extralegal arbiter, the laws of the gods.  Interestingly, Antigone cites not so much the “higher” law of the Olympian gods as the “lower” or primordial law of the gods of the underworld. This literary device points up the fact that a transcendent moral order is not only the proper criterion by which earthly laws can be judged; it is also the ground from which they grew.  She tells Creon that she defied his decree because it

“was not a law decreed by Zeus, nor by Zeus’ daughter, Justice, who rules with the gods of the Underworld.  Nor do I believe that your decrees have the power to override those unwritten and immutable laws decreed by the gods.

These are laws which were decreed neither yesterday nor today but from a time when no man saw their birth;  they are eternal!  How could I be afraid to disobey laws decreed by any man when I know that I’d have to answer to the gods below if I had disobeyed the laws written by the gods, after I died?”

Creon’s claim to flout the eternal law and dishonor the dead rests on his embrace of what we might (anachronistically) call legal positivism—a philosophy of jurisprudence that treats only official, codified laws as of any authority, regardless of their adherence to moral principles. Previously in the play, the Chorus has laid out this theory, telling Creon, “You have the right, son of Menoeceus to do as you please and to decree what laws you want, both, for the dead, as well as for the living.”  In an authoritarian context, this argument rings to hollow to us today, but keep in mind that we, too, have a principle of legitimacy: democratic assent.  In a modern setting, a government that sought to override the precepts of the moral law would cite not the will of the monarch but of the majority, claiming that “the American public demands” and that “only extremists and fundamentalists oppose” a proposed course of action.  Creon also argues from expediency, from the necessity for the safety of the city to set an appalling example of a traitor’s ultimate fate.  In other words, Creon defends his actions in terms that would recur throughout history whenever legal regimes attempt to override the fundamental precepts of the timeless moral order.  

Antigone does not enter the dispute on Creon’s terms.  She asserts that he simply lacks the jurisdiction to make decisions that affect a man’s eternal destiny. Such choices are supra-political, and immune to even the absolute power of the man who ruled an ancient polis. The dead have an absolute right to burial, which no human ruler can revoke.

Returning to our history, the debate over slavery in America hinged, in the end, on whether the positive law of the U.S. Constitution (which explicitly allowed for the institution of slavery) would be allowed to stand, or whether that law was intrinsically unjust according to the higher standard of the natural law—in which case that law was null and void and should be repealed, and in the meantime could be disobeyed. This conflict was decided in favor of positive law by the Supreme Court in the Dred Scott decision; it took an appallingly bloody civil war to overturn that verdict.

Similar debates occurred among Americans during the Civil Rights movement, when blacks who tried to use segregated facilities were denounced as “lawbreakers,” and they have arisen again thanks to the Supreme Court’s 1973 judicial fiat, Roe v. Wade—a ruling which stated that the “privacy” rights granted by the positive law of the Constitution trumped the intrinsic right to life of an unborn child, which the law does not recognize as a person.

Will Americans follow in the Creon tradition that holds the State and its often arbitrary decrees as sacred and worthy of all our deference?  Will we go on treating the timeless, universal natural law as a tissue of wispy suggestions or arbitrary religious beliefs?  If we do, we risk tossing onto the trash heap of history every last thing that makes America unique, and uniquely loveable.  The choice, this choice, is ours.

Jason Jonesis a producer in Hollywood.  His films include Bella, Eyes to See, and Crescendo. Learn more about his human rights initiatives at www.iamwholelife.com.

John Zmirak is the author of The Bad Catholic’s Guide to the Catechism. His columns are archived at at The Bad Catholics Bingo Hall. This column is from Jones’ and Zmirak’s upcoming book, The Race to Save Our Century (Crossroad, 2014).

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