Post
08.26.2020

He himself is perfectly capable of unmaking our regime.

People of good will are making a mistake if they think that the regime crisis America is now experiencing will be exacerbated not by a Joe Biden presidency, but whomever rules in his place. It is not just the radicals he will bring along with him who oppose and misrepresent America in principle.

In the newly released documentary movie Created Equal: Clarence Thomas in his Own Words, the Supreme Court Justice recalls the questions about natural law asked by then Senator Joe Biden during his 1991 confirmation hearings. Justice Thomas remarks: “One of the things you do in hearings is you have to sit there and look attentively at people you know have no idea what they are talking about.”

In the movie theater where I attended, that line received laughter and applause—Biden’s familiarly bumbling, smiling face on the screen certainly helped. Uncle Joe failed to entrap Justice Thomas and derail his nomination. But he failed upward, and though he is as much a chucklehead now as he was then, his dangerously warped understanding of our foundational laws is—now more than ever—no laughing matter.

You Know, the Thing

The topic that Biden had “no idea” about during the hearings was natural law. Natural law is a topic of the utmost seriousness. It is the touchstone of our American public philosophy, embodied in the words of the Declaration of Independence, that all human beings are “created equal” and “endowed by their creator with certain unalienable rights.” You know—“the thing,” as Joe Biden once called it; the defining idea of America.

How those rights are to be respected and protected by government is the key question of our constitutional jurisprudence. Some who claimed to defend the original meaning of the Constitution, such as Robert Bork, denied that judges should take any guidance from the ideas of the Declaration. Clarence Thomas knew better than Bork on this topic; Joe Biden successfully argued against Bork’s positivism and blocked him from appointment to the Supreme Court in 1987.

Hadley Arkes remarks that there appears to be “180 degrees” of difference between the Joe Biden of the Bork hearings and the Joe Biden of the Thomas hearings. Biden complained that Bork ignored natural law in his judicial philosophy, then turned around and complained that Thomas did respect natural law in his. To be more precise, Biden complained that Justice Thomas embraced the wrong version of natural law theory.

In Created Equal, Thomas argues that Biden’s discussions of natural law at the 1991 confirmation hearings were “nothing more than a way of tricking me into talking about abortion.” Given Biden’s comments at the hearing and the editorial he wrote about natural law for the Washington Post at the time, that seems very likely to be true. Biden wrote:

We must never forget that the central natural-law commitment made by this country is the commitment to individual freedom. But not all versions of natural law share this commitment. For some, the highest use of natural law reasoning is to state a code of behavior for all people to follow in their individual lives; a code that the government must enforce.

Such a static conception of natural rights and of the meanings of our constitutional language is emphatically not the view held by such founders as Jefferson and Madison. They understood that constitutional guarantees would have to change and expand with time.

Even as recently as the February 2020 Democratic debate, we have heard Biden say that there ought to be a “litmus test” for Judges to determine whether they will protect unenumerated rights such as abortion. To quote Biden from the New Hampshire debate:

The only reason women have the right to choose is because it’s determined that there’s an unenumerated right coming from the Ninth Amendment listed in the Constitution…. I’m the reason why this right wasn’t taken away a long time ago because I almost singlehandedly made sure that Robert Bork did not get on the Court, because he did not think there should be unenumerated rights…. If you read the Constitution very, very narrowly, and say there are no unenumerated rights, that if it doesn’t say it in the Constitution, it doesn’t exist—you cannot have any of the things I care about, any of the things I cared about as a Progressive member of United States Congress at the time, and as Vice President, and as a member of society.

What determines the content of these unenumerated rights for Joe Biden, one might ask? The answer is: whatever Joe Biden cares about. Biden’s philosophical claim that natural law theory need not entail a particular moral code is therefore wrong. His particular moral code is a pro-abortion version of natural law that maximizes choice and sacrifices unborn human life.

Malarkey

When it comes to Biden’s historical claim that Jefferson and Madison advocated a changing civil law for a changing moral law, that too is patently false. What Biden said during his speech introducing Kamala Harris as his running mate, and repeated during his speech at the Democratic National Convention, was that “we both believe we can define America simply in one word: possibilities.”

Pace Biden, possibility with no recognition of limits, with no respect for moral necessity and duty, is precisely what the founders rejected. They were for liberty, yes—but for license, no. And not a single Founder believed in the sort of “living constitutionalism” interpretation of law that Biden ascribes to them. James Madison directly discussed this issue in an 1824 letter to Henry Lee, where he wrote that:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”

The principles of the Declaration of Independence can never change: they are “self-evident” truths. To claim that Judges ought to “evolve” the fundamental principles of our country to accord with what those elites care about today is an old Progressivist canard.

We know now what that canard looks like in practice: not only unfettered abortion at any age but the forcible mutilation of children already born, the tearing apart of American cities and the arbitrary enforcement of ruling-class fancies. It has been argued that Joe Biden will be a hollowed-out shell for the radicals of his party who want a future of untrammeled progressivism. But it should be emphasized that Biden himself—even if (implausibly) he proves completely compos mentis for four years—believes in a philosophy antithetical to the American way of life. His presidency will be just as disastrous in this respect as if Kamala Harris and her army of woke cops take over.

Simply put: when it comes to the founders, natural law, and the interpretation of the Constitution, Joe Biden is a liar. Either that, or, as Justice Clarence Thomas more charitably submits to the audience in the movie, Biden has “no idea” what he is talking about. What Biden passes off as the defining idea of America is malarkey.

is an Assistant Professor of Political Science at the University of St. Thomas at Houston. He has previously taught at the University of Dallas, North Lake College, and Founders Classical Academy. He is a contributor to the Claremont Review of Books.

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