This morning the title of Erik Rush’s column for this week captured my attention: “Leftists No Longer Merit Constitutional Protections.” I found myself at once agreeing and disagreeing with its implications. Truth to tell, this dialectical quandary is often my state of mind, which is why I have to spend so much time thinking things through. Let me explain.
In recent years I’ve spent a lot of my time reiterating the connection being having rights and doing what’s right. Of course, as a matter of laws humanly made, this distinction doesn’t always hold. For example, as long as enslavers enjoyed Constitutional and statutory immunity under the laws of the United States, they could assert the “legal” right to own other human beings as chattel property, lawfully subject to use, according to their owner’s will, for any purpose not otherwise unlawful, just like other personal belongings.
In the American context, however, people opposed to treating human beings as chattel argued that extending the equal protection of the law to enslavers violated the premise of justice on which the people of the United States asserted their unalienable right of self-government. With this in mind, it should come as no surprise that I agree with the notion that, when it comes to their rights, people must merit the protections the Constitution aims to provide for them.
They do so as long as they do right by the conditions of His endowment of life and liberty, left to us on terms made known in what our nation’s Declaration of Independence calls “the laws of nature and of nature’s God.” As we learn to read and understand these terms, it is evident that in some respects they operate without regard to our choice and decision – in functions like falling asleep, breathing and the circulation of blood in our bodies, or the pangs of hunger and thirst that goad us to nourish them. In the course of these activities, it also becomes evident that some things are subject, to some degree, to our choice. This is most noticeable in regard to the appetites that impel us, for example, to eat or to procreate. We learn from experience that sometimes we can successfully resist the impulses connected with our appetites – refusing or postponing their satisfaction until something we judge to be preferable comes along.
To the extent that the impulses of nature seem irresistible, they have an aspect of self-enforcement that deserves the name of law in the strictest sense. But to the extent that they are subject to our choice, they are like provisions of law that we observe, or not, depending on a process of deliberation. As the Apostle observes, this process is, as it were, a dialogue in which participants “[S]how that what the law requires is written on their hearts, while their conscience also bears witness and their conflicting thoughts accuse or perhaps excuse them.” (Romans 2:15)
Americans ought to be accustomed to this process of deliberation. For the responsibility for self-government requires us to “do by nature what the law requires.” We must, therefore, become a law unto ourselves, governed, as it were, by laws of our own making. Of course, in light of the premises of our identity as a nation, this latter statement cannot stand alone.
Americans wrested the right to liberty (i.e., self-government) from tyrants, oligarchs and kings, by invoking against their power and authority the superior power and authority of God. In doing so, we assumed ourselves to be subject to His will. We portrayed ourselves willing to abide by His law, especially in respect of those activities which are subject, in some degree, to our deliberation and choice.
When, as a people, we uphold the doctrine of unalienable rights, by God-endowed, we declare ourselves determined, as a people, to do what is right according to His terms. However, like all human intentions, the truth of this statement is subject to demonstration, and therefore to trial and deliberation. Thanks to this statement of intention, it is reasonable to assume that as individuals and as a whole, the American people are committed to exercising right, according to God’s will for all humanity. This helps to makes sense of the principle of law we know as the presumption of innocence.
In light of that presumption, the headline for Erik Rush’s column appears to be mistaken. We do not have to merit Constitutional protections. We are entitled to those protections by dint of our humanity. But since, as human beings, our intentions are subject to proof, the presumption of innocence is rebuttable. It depends upon the performance of duties, which is, in turn, subject to neglect or outright contravention.
So, being charged with a duty means we are always open to the countercharge of malfeasance. The question then arises: Is it true or not? This is not just a question of our merits. It involves the merits of the case brought against us. No matter what the accusation, the Constitution aims to protect the process of reasonable deliberation required to ascertain its merits. Ostensibly unworthy individuals are not to be stripped of those protections, for they are not, in fact, a matter of individual merit. Rather, they involve an obligation to objective truth that justice requires no matter how infamous or reprehensible the accused, or the accusation brought against them.
Those whom Erik Rush calls leftists are certainly wrong to pretend that the charge of criminal conduct brought against Brett Kavanaugh somehow justifies their disregard for due process. But the notion that their wrongdoing should be turned against them fails to appreciate what due process intends to serve. Though rightly accorded to all individuals, due process is not simply a matter of individual right. Rather it safeguards the trustworthy character of the deliberations by which our self-government proves its claim to act by a delegation of sovereign authority from the Supreme Judge of the World, the author of all unalienable right.
The neglect of due process is, therefore, a treasonous assault on our sovereignty as a people. Such is the charge properly laid against the ones responsible for it. They aim to subvert our due regard for truthful justice, and by doing so discredit our capacity to administer it. Then their little clique of elitist would-be tyrants will step forward, slyly offering to do for us what we no longer trust ourselves to do for God’s sake. If we accept their offer, we will prove ourselves unworthy of the sovereignty our Constitution vouchsafes to to the people of the United States, on the strength of our God-endowed goodwill.