Or Legal Fiction
"The time has come," the Walrus said,
"To talk of many things:
Of shoes--and ships--and sealing-wax--
Of cabbages--and kings--
And why the sea is boiling hot--
And whether pigs have wings."
Lewis Carroll, The Walrus and the Carpenter from Through the Looking Glass.
Therefore, his question really meant, when translated into the language of law: "Does the Constitution not guarantee to pigs the same right as it does to birds, bats and winged insects? Will not the best and most exquisitely tortured logic aid in the discovery of this right, deeply embedded in the spaces between words, clearly vague, in the Constitution?"
Of course the whole issue of the nature of pigs, and whether indeed they have wings, and just what they would be able to do with wings if they had them, is of no concern to the Walrus. His concern, is, instead, an understanding of rights which is up to date, and the application of that understanding to pig-flight rights specifically. Nature, and the work of God are not relevant. This is because he holds an essentially atheist view of the rights of man- or in this case pig- which is not the correct understanding of what the American Founding Fathers meant by the very word "rights"- and yes, I know he is an English Walrus; but lawyers are lawyers, whether wigged barristers or well-suited attorneys.
In the Walrus' view, rights are created by men, and produced specifically by the government as acts of law. The idea that God has placed them in nature is completely alien to him (which is possibly due to his having too much about oyster breakfasts on his mind). He has assumed that the entire notion of rights is grounded in societal evolution, as the creation of created beings rather than of the Creator. Therefore, rights are what we say they are, not what they actually are as part of nature
If I am right about the Walrus, then it is very easy to believe that he could entertain, as well, a completely false notion of the institution of marriage. He would not understand it as God's own work, but would wrongly conclude that it is a product of society. He will not see that it is grounded in nature itself, as the work of God; he will think it is a man-made institution, and that it has evolved in history, and that it can be transformed by law because times have changed.
By failing to see that rights and marriage are not the products of society, law and government, he will believe that legislation or arbitrary judicial activism can change them into whatever he and his colleagues dictate. Likewise, the question of whether pigs have wings is secondary to the right of pigs to use wings. But, if nature cannot aid pigs to fly because God has not given them wings, then Mr. Walrus, esquire would be quite mistaken about the whole matter of rights altogether.
My argument against a pig’s right to fly is in line with the understanding of rights which the Founding Fathers put forth as the very basis of their reasoning both for Declaring Independence and for the Constitution. Before I proceed to argue against the Walrus or any lawyer who contends for the right of pigs to use wings (or for why Adam may marry Steve), I must point out that we should reject both extreme views of the men who gave us both American Independence, and later the Constitution.
In one school of thought they were all devout Christians basing their views on the Bible; in the other, they were all Deists who espoused anti-Christian pagan philosophy. Both of these points of view fail to give an accurate picture: In fact, they were among the most educated men of their generation, and were expressing an understanding that included the whole body of civilized thought from antiquity to modernity, aided by a unique strain of pure and genuine American character. (A young country? Perhaps; but never a child. When western civilization came of age, the result was the Constitution of the United States.)
They drew upon the Bible, the philosophy and history of the ancient world, and the experience of centuries of European weal and woe. Some were Christians; some were Deists, or at least very difficult to define, especially Jefferson. But, what they held in common, a view which makes sense from the standpoint of the whole Christian Tradition, is that rights deserve the protection of law and government because they have been given by God, and exist in His world as facts.
This means that their idea of rights was based upon "Nature and Nature's God" instead of upon the power of human governments. This alone gives justification to the belief that any government that becomes "destructive of these ends of right ought to be overthrown." This is the foundation of American philosophy, and it gives recognition to God as the Author of anything which justly can be called a "right." It was revolutionary conservatism, as strange as that may sound, because it was the conclusion of all that was held to be true over the whole history of civilization.
It means also that unless a right exists in nature, it does not exist at all. The only rights which governments are "instituted among men" to protect, are rights which are God-given. Whatever one may think of the religious beliefs of the individuals who were in the Continental Congress, and later the Constitutional Convention, this basic belief is impossible to defame as "un-Christian" pagan deism. In fact, it is, to borrow yet another phrase, "self-evident." Genuine rights belong to the creation of God, and exist really and truly as part of nature.
But, all of this goes over the head of the lawyers who argue for the right of pigs to fly.
The poor Walrus (if I am right about his professional aspirations to practice law) thinks that rights come from the law itself, that they are government inventions. He believes not only that they can change with the times, but that they must. He scoffs at the idea of Natural Law, preferring, apparently, a law that is essentially unnatural. I fear that, in addition to arguing for the right of pigs to fly by their own power, he will argue that a man may marry another man, a woman another woman, and perhaps, in time, that a man may even marry his horse. A right to marry according to one's preference is something that the State cannot justly deny; that is, once we wrongly assume that rights are man-made inventions through the power of law, and that marriage is an institution of societal evolution.
The Walrus has forgotten, if indeed he ever knew, that marriage was "instituted by God" and that it is part of nature. The story of Adam and Eve is meant to teach this very doctrine. And, as our Lord Jesus Christ explained it, it was the plan and work of God: "From the beginning of the creation God made them male and female. ‘For this cause shall a man leave his father and his mother, and cleave unto his wife, and they twain shall be one flesh'; so then they are no more twain, but one flesh. What therefore God hath joined together...". The laws which recognize and protect marriage are based upon the same concept of "Nature and Nature's God" spoken of directly in the Declaration of Independence, and which provides the rationale for the Constitutional Amendments which guarantee the protection of God-given rights.
The Walrus, should he ever appear for such a plaintiff as "Adam and Steve," would be correct about one thing however. The idea that two persons of the same sex can actually have a right to be married is worthy of the same consideration we must give to "whether pigs have wings."