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| | | As Kurt Gödel asserted, no self-contained system can be wholly logical. But the Framers had to come up with a system that a geographically and theologically diverse group of people would all submit to. Holmes, in “The Path of the Law,” recognized that “the bad man” will not be guided by morals, only by what the law actually does. So the Framers articulated principles, and eventually (by popular demand) a Bill of Rights, premised not on religious morality but on the idea that we (now everyone and not just white males) are endowed with certain rights that cannot be nullified or abrogated by the rights or actions of others. Performing a contemporary functionalist investigation of whether humans are actually equally endowed with certain inalienable rights generally reveals instead that society best functions when we all enjoy rough parameters of equality. So now we could justify the endowment (or recognition) of these rights by utilitarianism. The Framers would have had no access to data that would reveal such justifications; they relied instead on their educations and common sense. In other words, they relied on a bit of transcendental nonsense to convince each citizen that certain rights were naturally inherent in each of them as well as in each of their countrymen, and if they wanted their own rights to be protected, they had to ensure everyone else’s were too.
Why We Need to Keep Some of the Framer's Nonsense | |
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< | I’d like to argue that this use of transcendental nonsense, premised on a great deal of essentially functionalist contemplation and debate by the Framers, was essential to eliminating the more harmful transcendental nonsense (or Jerome Frank’s definition of magical thinking) of theocratic governments. The old form of social control was too oppressive for the new, idealistic country, but for a more religiously-neutral system of laws to have any effective social control, it had to gain strength by legitimacy, and creating a nonsense of rights gave every citizen the feeling that government dealt with them as it dealt with every other system. As we’ve discussed extensively in class, many more layers of transcendental nonsense and legal magic have been laid successively on top of this original, functionally designed “inalienable rights” nonsense. While we correctly attempt, in our class and hopefully in our larger lives, to work at tearing down the nonsense that has resulted, to varying degrees, in the perversion of the Framers intent and the unadvised strengthening of particular groups (who gain power using wealth, political power, demagoguery, or that old religious magic), I’m afraid we’ll tear out that nonsense that was essential to us coming together as a united country. There may never be anything we can all agree on as “truth,” and our inherent and intractable subjectivity may keep us divided as to many different aspects of our lives, but the Framers’ nonsense about inalienable rights was functionally derived, can be justified through utilitarianism, and is essential as the basis for a functioning society. Flawed as we are, I think we must accept even that scant common ground. | >
> | I’d like to argue that this use of transcendental nonsense, premised on a great deal of essentially functionalist contemplation and debate by the Framers, was essential to eliminating the more harmful transcendental nonsense (or Jerome Frank’s definition of magical thinking) of theocratic governments. The old form of social control was too oppressive for the new, idealistic country, but for a more religiously-neutral system of laws to have any effective social control, it had to gain strength by legitimacy, and creating a nonsense of rights gave every citizen the feeling that government dealt with them as it dealt with every other citizen. As we’ve discussed extensively in class, many more layers of transcendental nonsense and legal magic have been laid successively on top of this original, functionally designed “inalienable rights” nonsense. While we correctly attempt, in our class and hopefully in our larger lives, to work at tearing down the nonsense that has resulted, to varying degrees, in the perversion of the Framers intent and the unadvised strengthening of particular groups (who gain power using wealth, political power, demagoguery, or that old religious magic), I’m afraid we’ll tear out that nonsense that was essential to us coming together as a united country. There may never be anything we can all agree on as “truth,” and our inherent and intractable subjectivity may keep us divided as to many different aspects of our lives, but the Framers’ nonsense about inalienable rights was functionally derived, can be justified through utilitarianism, and is essential as the basis for a functioning society. Flawed as we are, I think we must accept even that scant common ground. | | | (978 words, not including headings)
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