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Garet on "The Blessings of Liberty"

By Lawrence Solum

Ronald R. Garet (University of Southern California Law School) has posted To Secure the Blessings on SSRN. Here is the abstract:

The Constitution?s Preamble states, in part: ?We the people of the United States, in order to? secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.? While the word ?blessings? in this context might mean simply benefits, it might have a more specifically ethical and dispositional meaning, such as benefits for which we should be grateful. Those who favor an evangelical reading of the Constitution might further specify the ethical and dispositional meaning, so that ?blessings? recalls God?s promise to Abraham and Israel and the relationship that this promise initiates. On this evangelical reading, the Preamble?s aspiration to blessings fits within a familiar Biblical warrant for American exceptionalism.

An ampler Biblical account of blessings (and curses), however, questions this warrant. The ampler account is ironizing; it tends to reveal incongruities throughout our picture of ourselves as blessed and as blessing others. Relocating or transposing the Preamble?s Blessings Clause into this Biblical frame has a salutary ironizing effect, enabling us to see the whole project of securing the blessings of liberty to ourselves and our posterity in a more critical light. Without irony, what is otherwise virtuous ? our disposition to gratitude ? is tainted by the vice of complaceny. Without gratitude, the virtue in irony declines into a self-congratulatory sarcasm.

Suppose we read the Preamble?s Blessings Clause in light of Biblical stories about how Jacob secured blessings to himself and his posterity. In this reading, the framers of the law (?fathers?) suppose that they ?secure the blessings? to and for the generations to come, but the children actually ?secure the blessings? from the ?fathers? (by deceit if necessary). ?To secure the blessings? it is necessary to overthrow the law (albeit for the sake of realizing it). Ultimately, the blessings are not ?secure,? but instead open or at risk in a way that gives depth of significance to life and law. Life graced with blessings is not ?secure,? and the prosperity or abundance in ?blessings? offers no immunity against the human circumstances of pain, loss, grief, anxiety, and guilt. The ground and source of the blessings upon ?ourselves and our posterity? require that ?we the people? mediate blessings to all humankind; but we exchange blessings for curses if do not act with humility and in awareness of our limitations and mixed motives.

Full post as published by Legal Theory Blog on July 20, 2010 (boomark / email).