In Rekindling Constitutional Ambition, his recent post for Law and Liberty, Yuval Levin offered some particularly helpful insights for thinking through our constitutional problems. As Levin points out, friends of the Constitution are currently in a period of uncertainty about what goals they should be aiming for, even apart from the usual confusion over how to achieve their goals. Some friends of the Constitution argue that the election of Donald Trump to the presidency would allow for a revival (such as the writers at the Journal of American Greatness blog), while others (such as the signers of the Originalists against Trump statement) argue that it would undermine obedience to the Constitution as that document was originally intended.
The kind of extremism on display on the Planned Parenthood videotapes and in the reflexive closing of ranks around the group—whose own leadership has done more to disavow its grotesqueries, or at least the depictions of them, than have its political supporters—is the product of Roe v. Wade, but not for the reasons commonly supposed.
Print up a bunch of money, and the value of money is almost sure to decline. Make up a host of new rights and the value of rights is likely to plummet as well. As our modern experience demonstrates.
Simplifying, we might imagine three stages in the devaluation of rights. In stage one (which, like the “state of nature,” probably never quite existed), a right would be categorical. If you have a right to freedom of speech, say, this would mean that you can say whatever you want (at least within the scope of the right’s coverage) and the government cannot sanction or restrict you. Period. Justice Black sometimes talked as if freedom of speech were or should be an absolute right. The average lay person may sometimes think this is what a right means.
Thanks to Greg Weiner (and the commenters) for taking on my original piece, which has gathered far more attention than I had anticipated. Greg argues that, “It has become commonplace to see the Declaration as a radical break with this tradition—and, in some circles, the Constitution as a radical break again—but a continuum of this symbol is clearly traceable.” Yet, though there is some “traceable” continuity, the Declaration is of a different order.