Notice the telltale references to both faith and reason, to the distinction between the Declaration as a statement of truths and the Constitution as a means of protecting those truths (Lincoln’s apples of gold in pictures of silver), and to the question over the ultimate origin of rights.  Pure natural law argument.

Of course, the purest form of legal positivism these days comes from the conservatives and not from Obama or other moderates.  The legal positivism of Bork, Rehnquist, and Scalia, among others — the refusal to see our rights as emanating from anything greater than a majority’s sufferance — is partly a reaction to what those judges and justices understand to be a groundless Living Constitution.  For the average conservative jurist, discovering the Declaration’s truths in the Constitution seems just as touchy-feely as Living Constitution’s shifting, generational understanding.

This is why I believe moderates and liberals are closer to the Founders than the conservatives.  ”Verily I say unto you, that the publicans and the harlots go into the kingdom of God before you.”  At least the Living Constitution has as its central premise that the Constitution has a heart.  And if moderates and liberals want to stop ceding the Constitution and the Founders to the states-rights conservatives, they may wish to examine natural law, perhaps starting with John Locke and Abraham Lincoln.  After all, few of Rick Santorum’s political views inexorably follow from natural law.

Gingrich chafes under the modern debate format’s time constraints – not the aggregate time constraints: last night’s two-hour debate wasn’t that much shorter than the ones Lincoln and Douglas agreed to – but the time each candidate has to lay out his position before the next one speaks.

Little I’ve heard from Gingrich, though, suggests that he wishes to debate anything like the fundamental issues Lincoln and Douglas debated on seven occasions across Illinois in 1858. He just wants the uninterrupted 30-, 60-, and 90-minute time blocks the debaters enjoyed back then. (Lincoln and Douglas didn’t use moderators, either, and Gingrich always reserves his greatest invective for whoever’s unlucky enough to moderate the debates he participates in.)

Oddly, though, in the final minutes of last night’s debate, two of the candidates began to address an issue central to Lincoln – Douglas: what active role does the Declaration of Independence play in interpreting the Constitution and defining our federalism?

All four candidates were defending their pro-life bona fides.  Two of them – Rick Santorum and Ron Paul – began to draw distinctions between their views on how the right to abortion should end.  Short as the exchange was, it sketched out Lincoln’s and Douglas’s different approaches to the South’s right to slavery.

Paul wants to return abortion to a pre-Roe vs. Wade condition.  That is, he sees abortion as an act of violence and groups it with other acts of violence, such as murder, that the states have traditionally regulated through criminal codes and common law.

Santorum, on the other hand, believes that abortion is a federal and not a state issue.  Looking on his web site this morning, I found his list of a number of bills he sponsored or supported as a United States Senator that limited, or would have limited, abortion rights.

As I understand him, Santorum seeks not to simply overturn Roe v. Wade, which would leave the states free again to choose between criminalizing abortion or not. He seeks to outlaw abortion on a federal level as inconsistent with the Constitution as informed by the Declaration of Independence.

Here’s the actual exchange from this morning’s Chicago Sun-Times transcript:

MR. SANTORUM: Congressman Paul has a National Right to Life voting record of 50 percent, which is pretty much what Harry Reid’s National Right to Life voting record is. So for — to go out and say that, you know, you’re someone who stands up for the right to life, you repeatedly vote against bills on a federal level to promote the right to life, and you say that this is an individual personal decision or state decision. Life should be protected, and you should have the willingness to stand up on a federal level and any level of government and protect what our — excuse me — what our declaration protects, which is the right of our Creator to life, and that is a federal issue, not a state issue. (Applause.)

MR. KING: Quickly, sir.

REP. PAUL: Well, just — just for the record, I wasn’t even thinking about you when I was giving my statement.

MR. SANTORUM: (Off mic.)

REP. PAUL: So you are overly sensitive. (Laughter, cheers, applause.)

But it — but it is true that we have a disagreement on how we approach it. I follow what my understanding is of the Constitution, and it — it does allow for the states to deal with difficult problems. As a matter of fact, it allows the states to deal with almost all the problems, if you look at it. It is not given — these powers aren’t given to the Congress.

I see abortion as a violent act. All other violence is handled by the states: murder, burglary, violence. That’s a state issue. (Cheers, applause.) So don’t try to say that I’m less pro-life because I want to be particular about the way we do it and allow the states the prerogative.

This is the solution. This is the solution, because if we would allow the states to write their laws, take away the jurisdiction by a majority vote in the Congress, you repeal Roe versus Wade overnight instead of waiting year after year to change the court system. (Cheers, applause.)

Two things to note in Santorum’s remarks.  First, he deliberately corrected himself when he started to describe an unborn child’s right to life as something our Constitution protects.  He settled instead on describing it as something our Declaration of Independence protects.  He therefore seems to stand with Lincoln, who saw the Declaration of Independence as the soul of the Constitution.  (Lincoln, of course, never addressed abortion, but Santorum’s approach seems to model Lincoln’s from a Constitutional standpoint.) Lincoln went so far as to say that the Constitution’s primary mission was to protect the self-evident truths in the Declaration.

Lincoln’s penchant for reading the Constitution as a mix of ideals and political compromises and for using the Declaration to distinguish between the two was the backbone of his position in the debates.  Slavery could not be extended to the territories because the Constitution’s compromise with slavery should be strictly construed. Lincoln, therefore, saw slavery’s existence as solely a federal issue.

Douglas saw slavery as a state issue.  His doctrine of popular sovereignty, which had been embedded into the Kansas-Nebraska Act of 1854, would permit each territory to decide whether to permit slavery within its borders. Commensurate with his position, Douglas did not read the Declaration has having any bearing on the slavery issue.

The second significant point from Santorum’s remarks is this: Santorum not only described abortion as a federal issue, but he also specifically stated that it was not a state issue.  I doubt the ramifications of that statement sunk deeply into the ears of the debate’s audience. Santorum wants to in some manner make abortion illegal on a federal and Constitutional level.  Apparently, under Santorum’s formulation, states would have as much ability to make abortion legal as they now have to make slavery legal under the Thirteenth Amendment. (And read Paul’s brief defense of a limited role of the federal government under our Constitution in his response to Santorum.  It’s almost precisely Douglas’s position concerning the federal government and slavery.)

If Santorum’s argument (as I understand it) advances, think how it may shape our view of federalism and state’s rights.  Would abortion rights advocates become our next generation of states rights advocates? Would the pro-life advocates split over the issue of federalism? (Santorum, interestingly, got “applause.” Paul got “cheers, applause.”)

I don’t think Roe v. Wade will survive another forty years. The way the right to abortion ends, though, is important to our federalism, and perhaps echoes of that larger, future debate may reach back to last night in South Carolina, as brief and as halting as the exchange about it was.

2.  Lincoln uses the rhetorical occasion of a battlefield dedication to serve as a metaphor that gets across and unites his version of history and his view of the Union’s war aims.  The occasion of Lincoln’s address is the dedication of the Gettysburg Battlefield.  The concept of dedication comes up in three other contexts, though: the dedication of the nation, the dedication of soldiers, and the dedication of the audience.

3.  Lincoln’s audience is conditioned by the speech’s occasion to hear the word “dedication,” but Lincoln first uses it metaphorically and out of the speech’s immediate context.  In his first sentence, Lincoln alludes to the King James Version of Luke 1 and 2 when he uses the terms “conceived” and “brought forth” as well as the idea of dedicating children.  Our nation was dedicated to a proposition found in its inaugural document, the Declaration of Independence, Lincoln implies, just as Jesus was dedicated at the temple to God shortly after his birth.  This attributes to the nation and to the Declaration a kind of holiness – a kind of God-given purpose – beyond the form of dedication that the audience had come to participate in.

The second use of “dedication” is its use in dedicating the battlefield.  It is in the context of the “Now” introduced by the second paragraph.  It juxtaposes the present occasion with the dedication he and the audience are participating in.  The comparison of almost mystical past in which fathers gave birth and dedicated a nation with the mundane, after-the-fact present, tends to make us see the fathers’ actions as greater than the audience’s is.  “They dedicated a nation, after all, and we are only dedicating a battlefield,” the audience may be led to think.

But Lincoln both reassures the audience and points it in a new direction.  “It is altogether fitting and proper that we should do this,” Lincoln assures his audience.  Now that the audience is assured in their relation with the past, Lincoln points it in a new direction – the future.  After closing the second paragraph with assurance, he begins the third with “But.”  The soldiers have already dedicated field with their lives, and we have but “poor power to add or detract” to that act or from it, respectively.  We cannot dedicate the field, as we had come to do.  We can only take the soldiers’ example and dedicate ourselves to the same purpose they dedicated themselves to the cause that this nation “shall have a new birth of freedom.”

Lincoln uses the occasion of the battlefield’s dedication effectively to move his audience from the mystical, grand past of our nation’s inception to the present occasion, and then to the audience’s future work.

4.  One of Lincoln’s rhetorical purposes is to increase his audience’s devotion to the Founding Fathers and what he believed they accomplished through the Declaration of Independence.  He does this by suggesting that they dedicated our nation to a proposition – an unproven and arguably axiomatic idea – that all men are created equal.  When the audience in paragraph two is made to feel how small the immediate dedication of a battlefield is compared to the dedication of a nation, the audience also feels how significant and exceptional the Declaration’s equality clause is.

Lincoln’s peroration involves the audience in the Founders’ work, however.  By dedicating themselves to the soldiers’ cause, the audience becomes co-laborers with the Founders.  While the Founders gave birth and dedicated the nation, the audience dedicates itself to preserving the nation so dedicated.

I love gathering around a text.  I’ve loved it at college seminars, at church, at school, in book groups, at meals, with Victoria mornings before we go. The text as a table with room around it for many chairs.

I love co-ment.com. I’ve spent the day assessing my students’ comments there on the Gettysburg Address.  It made me comment more.  I find good texts — poems, portions of Scripture, portions of novels, portions of anything — inexhaustible.  I organize my thoughts around them.  I’ll walk weeks without a light with them.  I’ll live a hard day deep down around a Bible verse or a snatch of poetry, a table set before me where mine enemy can pull up a chair, too, while laying down his arms.

I’ve always wanted others to see what I see in a text.  And I want to see what they see, too.

– Richard Rhodes, from “Beware of that Voice in Your Head” in today’s Wall Street Journal.

2.  My comment addresses Lincoln’s rhetorical strategy of invoking history in a seemingly objective but ultimately selective fashion.  Lincoln’s address starts off as a chronology, and, indeed, through the first two paragraphs he puts the events in chronological order.  But he’s very selective about what events are included: the signing of the Declaration of Independence (“the Declaration”), the Civil War, the Battle of Gettysburg, and the dedication of the Gettysburg Battlefield.  My comment particularly concerns the first two events: the signing of the Declaration of Independence and the Civil War.

3.  Lincoln obscures how selective he is by three means.  First, his address is very short, so he can’t be expected to put the country’s entire history in it.  Second, he ties the events together rhetorically.  He relates the Civil War to the Declaration’s signing by introducing the war in the address as the means of testing whether the nation conceived, birthed, and dedicated at the signing can last.  He achieves this by defining the war in terms of the Declaration.   The nation defended is “so conceived and so dedicated.” Third, he puts the Declaration and the Civil War in a life-cycle metaphor that extends over the entire address and parallels that life implicitly with Jesus’ life.  The Gospel of Luke, which Lincoln alludes to in the first paragraph, moves from Jesus’ birth and childhood to his three-year ministry while leaving out everything in between.  Similarly, Lincoln moves from our nation’s conception, birth, and dedication to its by-then three-year-old Civil War the same way.  “. . .  brought forth . . . conceived in liberty, and dedicated . . . Now we are engaged . . .” Nothing is said of the Constitution or of any event from 1776 to 1861.  If one questions Lincoln’s selective history, Lincoln seems to suggest, one might as well question Luke’s.

4.  By recounting our nation’s history through limiting it only the Declaration and the Civil War, Lincoln clarifies by simplifying.  He simplifies our history to emphasize what he sees as riding on the Civil War’s outcome – the existence of a nation, or any nation, founded on the Declaration’s principles.  The simplification also serves to reinforce Lincoln’s belief that the nation came into being at the Declaration’s signing.  This position was important for Lincoln for two reasons.  First, it gave the propositions in the Declaration – particularly that all men are created equal – outsize influence in reading the Constitution.  Second, it reinforced his belief that the people, not the states, created the United States.  If states created the United States, then it would boost the South’s case that individuals have no inherent rights but only those rights that a government recognizes as due to a segment of its population.

One day my judge refused to sign one of my drafts.  The inmate in question had petitioned the court for damages after debris had allegedly hit him in the head and injured him on a work site.  The prison administration was at fault, he said, because it hadn’t issued him a hard hat.  My order would have permitted the case to proceed to a hearing.

My judge smiled. “There’s no constitutional right to a hard hat,” he said.

One of my students earlier this month came up with a new inalienable right.  When I asked the class what rights he would add to (or specifically enumerate in) the Declaration of Independence or the U.S. Constitution, he included “the right to call someplace home.”

Consider the virtues of a right to call someplace home.  It’s vague, like due process or equal protection.  Everyone can pay it lip service.  A faction could read it as requiring the government to find housing for everyone.  Another faction could hold “English only” legislation unconstitutional since it infringes on a penumbral right to speak only the language of an immigrant’s homeland.  Others could weaken it, or perhaps use it in a way my student may not have intended, by discovering in it only the right to call the United States home, first holding that the government decides what “someplace” is for everyone.  Some may find the right only aspirational: we are a rather nomadic people as well as a melting pot, and perhaps we feel the need for place more acutely for our relative rootlessness.  And some may find it merely tautological.  After all, calling someplace home sounds quintessentially unalienable.

Anyway, it’s a step up from a constitutional amendment delineating the right to a hard hat.

I stared at the passing pines and a smoldering, almost eternal sunset from the middle seat of our old minivan yesterday on the way north from my parents’. (I had been fighting sleep just an hour out of Tidewater – a short time even by my standards – so Victoria had taken over the driving.) I thought about the story my father had told the evening before, a deflating conversation he had had with an old English professor at Virginia, where he had matriculated on the GI Bill after his honorable discharge. You’re not the student your father was, the professor had told him.

But English was supposed to be my strength, like my grandfather’s, and I loved Faulkner. Two-thirds of the books we had read that spring seminar at Virginia were Faulkner. I thought yesterday about the bright afternoon I had pointed out Faulkner’s use of tobacco in Sartoris to settle us in time and to distinguish among generations of men rising through their accreting heritage. John Sartoris had smoked a pipe; old Bayard, his son, smoked cigars; and young Bayard, his son’s son, smoked cigarettes. Mr. Armstrong, I remember, was impressed. Maybe I never said much more.

You know what gets me? Have, had, and had had. When a fourth generation starts telling the same story, will they say had had had, or will they switch back to had, as we switch between two punctuation marks for quotes in quotes in quotes?

I never go up in my parents’ attic to read my grandfather’s long, typed letters. I imagine they’re like mine: newsy and oddly shutmouth when read in a single sitting. Friable.

My mother saves my letters, too, or some of them, as from a fire. Years ago she had a necklace forged of my grandfather’s gold medallion that he had won in a college essay contest, and she’ll still wear it. I’ll often talk about literature with her on their porch while my father falls complacently silent.  He’ll start to doze after a while as I might to a car’s engine.

Pop loves to drive. At 87 he bought his first red convertible, a real cream puff. He demonstrated the top to us yesterday before we said our goodbyes in their driveway. You can see my teenage son’s reflection in the waxed surface, talking on his cell.