OVERSTATED:

American Conservatism and the Present Crisis (Harry V. Jaffa, February 12, 2003, Claremont Institute)

In the more than 200 years of our history, the most difficult of all truths, and the one most often and most profoundly subject to censure or misinterpretation, is that beginning, "We hold these truths to be self-evidentÉ." In 1860-61, 11 states justified "secession" from the Union, and forming a separate government, on the ground that they were exercising the right, as set forth in the Declaration of Independence, to withdraw their consent to be governed. Yet the secessionists denied categorically the assertion of the universal equality of human rights in the same Declaration of Independence, which was the moral and logically necessary ground of consent. The doctrine of states' rights—central to much of American conservatism in the 20th century—has from the beginning divorced political right from the equal natural rights of individual human beings, under "the laws of nature and of nature's God." This was the principal ground of difference in the struggles against Jim Crow and for civil rights. Today, in the controversy over "affirmative action" in its many guises and embodiments we find the former leaders in the movement for civil rights—amazingly and paradoxically—demanding rewards and privileges, not as individuals but on the basis of their collective racial or ethnic identities. And we find conservatives (or at least some of them) on the other side—no less paradoxically—opposing affirmative action as contrary to the individual rights proclaimed in the Declaration! Clearly, precision concerning the real meaning of the Declaration of Independence, and its bearing on the institutions of government (especially the Constitution), is the most urgent order of business for us. [...]

[A]ddressing the Gregorian Institute in Rome in 1996, Justice Antonin Scalia commented:

"It seems to me incompatible with democratic theory that it is good and right for the state to do something that the majority of the people do not want done. Once you adopt democratic theory, it seems to me, you accept that proposition. If the people do not want it, the state should be able to prohibit it."

And again:

"The whole theory of democracyÉis that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection."

And again:

"You either agree with democratic theory or you do not. But you cannot have democratic theory and then say, but what about the minority? The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights."

Saddam Hussein recently held an election in which he received over 99% of the vote. Does that make him democratically elected? Does that make his regime any less tyrannical? Strictly speaking, what we call minority rights are not rights of the minority as such. They are rights of individuals, possessed equally by all. It is to secure these rights—the rights of man under the laws of nature and of nature's God—that governments are instituted, deriving their just powers from the consent of the governed. Government, and majority rule, extend only to these "just powers." Adoption by a majority does not make an unjust power just, e.g., the taking of private property without just compensation, the extension of slavery, the waging of aggressive war. Majority rule, in itself, is not a justification of anything. It may be called democratic only within a process in which there is free exercise of religion, freedom of speech, of the press, and of association. The ends served by majority rule are not decided by majority rule. [...]

[M]odern conservatism suffers from the same nihilism and postmodernism that dominate liberalism and that suppress dissent on our campuses. If conservatism is not to become a mirror-image of decadent liberalism, we have to return the movement to its roots in the political thought and actions of the American Founders and Abraham Lincoln. Nothing is at stake but the soul of the American Revolution, and the salvation of Western civilization.

Maybe I'm missing something, but hasn't Mr. Jaffa just proven the case for secession? Obviously there's no "right" to a Union, so why, unless you revert to the majoritarian analysis, can the majority force the minority to stay in it? Posted by Orrin Judd at February 18, 2003 2:29 PM