For more than a month, the lawyer and legal scholar Mark Pulliam has been locked in debate with Edward Erler, the professor of the American Founding, on constitutionalism and jurisprudence. The debate has mainly occurred in the pages of American Greatness. It has been robust, illuminating, and at times, contentious. Professor Erler noted that we had linked to Mr. Pulliam’s latest rejoinder and asked that we publish this response. We bear special fondness for Mr. Pulliam, Professor Erler, American Greatness, the Claremont Institute (where Professor Erler hangs his intellectual hat) and Law & Liberty (where Mr. Pulliam regularly publishes). Both Mr. Pulliam and Professor Erler have a standing invitation to submit works to RealClearPolicy, and we will gladly link to responses published elsewhere. For those readers who wish to follow along, Mr. Pulliam has linked to past entries in this ongoing dialogue.
Mr. Pulliam is accomplished at making frivolous accusations, but lacks any talent for constructing a coherent argument. In the exchanges I have had with him he claims to adhere strictly to the text of the Constitution, yet the core of his constitutional jurisprudence is to ignore the parts of the constitution that he finds inconvenient or contrary to his ideological predilections.
A case in point: “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This plain language means that, in addition to enumerated rights in the Constitution, there are unenumerated rights which cannot be denied or disparaged (diminished or given second-class status) because they are not enumerated.
I explained Madison’s reasoning behind this language in my first response which Mr. Pulliam failed to counter. Madison believed it was dangerous to make a specific list of rights because the legal principle was that the inclusion of one thing meant the exclusion of the other. In other words, as a matter of legal principle the list of rights would be read as an exhaustive or complete list, including those rights and no others. This is exactly how Mr. Pulliam wants to read the list! But Madison knew better. No constitutional legislator can think of everything necessary to restrain government from invading the rights and liberties of the people or individuals. Experience, Madison said, was our only reliable guide, and experience would suggest the necessity of new restrictions in the form of rights and liberties which would have to be articulated from time to time to meet new exigencies. Mr. Pulliam would have us ignore this plain text of Constitution. How can he claim to be a textualist? Or an original intent jurisprude?
We also disagree about the status of the Declaration. In my last response, I demolished his contention that the Federalist Papers did not rely on the principles of the Declaration. I would have thought that Mr. Pulliam would have responded.
In fact, on three occasions now I have challenged Mr. Pulliam to name one principal founder, John Adams, Alexander Hamilton, James Madison, Benjamin Franklin, George Washington, Rufus King, John Jay, James Wilson, Richard Henry Lee, George Mason, and a host of others who denied that the Declaration was the authoritative source of the Constitution’s authority. So far he has refused to do so. If the idea is absurd or ludicrous, as he claims, his task should be easy.
Mr. Pulliam contends, quoting law professor Lino Graglia, that the Declaration does not provide anything “useful as rules of law.” Pulliam is not ignorant—since I pointed it out to him—that the Declaration is listed in Title I of the United States Code as the first of the Organic Laws of the United States. As the first organic law, it is the authority for everything that follows. In my last reply I quoted John Hancock, president of the Continental Congress, in his letter transmitting the Declaration to the states, saying that it would provide the basis for future governments of America. This is what organic law mans.
Mr. Pulliam also becomes hysterical at the idea that I argued that the founders believed that natural law principles prescribed limits to majority rule. The rights of conscience, Madison frequently argued, can never be submitted to majority rule, nor can any natural rights be subject to majority control. They existed by nature and derived from the fact that “all men are created equal.” They are the rights of human nature.
Pulliam seems to think that the thirteenth amendment which abolished slavery can be repealed by another amendment as long as it passed following prescribed constitutional procedures. The co-author of the amendment, Senator Lyman Trumbull of Illinois, thought that the amendment was a fulfillment of the principles of the Declaration:
Of what avail was the immortal declaration ‘that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness,’ and ‘that to secure these rights Governments are instituted among men,’ to the millions of the African race in this country who were ground down and degraded and subjected to a slavery more intolerable and cruel than the world ever before knew?
The existence of slavery could not be abolished at the time of the founding and it was given protections in the Constitution, but the framers understood these protections to be temporary. Slavery was put in the course of ultimate extinction to be abolished when political circumstances permitted. The aftermath of the Civil War made abolition not only permissible; it made it a moral imperative flowing from the principles of the Declaration.
Since we know that slavery — “property in men” — is a violation of the “Laws of Nature and Nature’s God,” and the first of the Organic Laws of the United States it is easy to conclude, and to conclude rightly, that the thirteenth amendment is an unrepeable part of the Constitution. This is the argument that drives Pulliam to distraction. Nothing, he argues, can limit the Constitution, lest judges invest it with their own idiosyncratic values and ideological predilections. But, unlike Pulliam, the Constitution does not elevate process over purpose. It does not sacrifice ends or purposes to process. The ends, as the founders understood — and clearly stated — were detailed in the Declaration. The Constitution served as the means to accomplish those purposes. Without ends or purposes freedom is indistinguishable from tyranny. Oliver Wendell Holmes once said the world was nothing but “fighting faiths” (today we would say “competing value systems”) struggling for predominance. No faith deserves to win, only the most powerful claims victory and must be recognized as the winner. No moral principles are implicated. The founders knew better. Without moral principles, justice was merely the interest of the stronger, and in a democracy, the majority is always stronger.
Remember how Stephen Douglas countered Abraham Lincoln’s moral arguments against slavery. “It is only a matter of whose interest is being served,” Douglas argued. “There is no moral issue involved.” “If you believe slavery is in your interest, vote in favor of it. If not, vote against it. It is merely a matter of interest.” Lincoln, of course, argued that if rights were only a matter of interest — of majority rule — then everyone’s rights were in danger, because it was always in someone’s interest to enslave others. After all, what was tyranny but the enslavement of an entire people by one man, or oligarchy by a few rich to promote their interests. The only way to protect rights securely is to deny that they can ever be subject to majority vote, that government must protect rights, and never determine whose rights to protect on the basis of whose interest is being served. Lincoln constantly based his arguments on the “sheet anchor” of republican government, the Declaration of Independence which he argued was the only solid ground for rights and liberties.
Majority faction, as the framers well knew, destroys democracy, and they took steps to obviate the danger and the steps they took relied on the “Laws of Nature and Nature’s God.” Without a view to the purposes of the Constitution we fall into the confusion so evident in the scribbling of Pulliam.
Mr. Pulliam says we should leave the Constitution and constitutional interpretation to the lawyers. He may or may not know that the Father of the Constitution was not a lawyer and that the principal author of the Declaration of Independence was a lawyer (along with three of the remaining four remaining members of the committee that drafted the document). No wonder Pulliam is confused about the founding. His disdain for the Constitution is the product of that confusion. I agree that the current state of constitutional jurisprudence is in shambles. But who brought us there? It is the tribe that Pulliam belongs to. I am trying to return constitutional jurisprudence to genuine original intent, the intent and vision of the Father of the Constitution and the lawyers who drafted the Declaration. They understood the success of the founding would depend upon a proper understanding of the dynamic relation of these two great founding documents which cannot be understood independently of one another.
Edward J. Erler is senior fellow at the Claremont Institute. His book, Locke, the Declaration, Madison and the Challenge of the Administrative State will be published by Rowman and Littlefield in July, 2019.
