This month we are sharing a selection of paired pieces from The Federalist Society's Liberty Month in July 2015. We hope you enjoy reading them. Click here to visit the paired piece for this entry.
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American exceptionalism—and America is exceptional—is a result of the Scottish Enlightenment, the waves of immigration that built the colonies, and, most importantly, the Constitution that developed from those basic factors and that forged the rule of law, the guarantees of liberty and limited government (now sorely tested) and the blessings of a nationwide free market economy.
Josef Joffe, the German intellectual, publisher and Stanford professor once said, in answer to a question as to whether continental Europe would ever fully accept a free market, “Unlikely, because the Scottish Enlightenment penetrated Great Britain for a few years, then took off over the Atlantic and landed in the U.S. Constitution where it has prospered ever since, but never made it across the channel in the other direction.”
The four major waves of English immigration to the U.S., so well chronicled by David Hackett Fischer in Albion’s Seed, brought Enlightenment values that permeated the nascent U.S. population and all of the other European immigrants who came to America to add extraordinary energy and diversity to the foundation of the U.S. Arthur Brooks may be right about studies suggesting that there was some risk-taking DNA-self-selection that made the U.S. settlers unique in their ambition, entrepreneurship, persistence, and distrust of big government.
As recent histories have documented, even with these advantages, the emergence of the U.S. was far from certain in the years surrounding 1776 and during the war for independence. But the Constitution itself was slightly different. The collection of great minds that assembled in Philadelphia is probably unprecedented in history.
The document they drafted was and is a thing of wonder, “if we can keep it,” to paraphrase Benjamin Franklin. The separation of powers structure to protect against overreaching power by any one branch of Government was brilliant and highly successful (at least until today, when one must be on guard to keep that brilliance intact). The federalism inherent in preserving state power has atrophied a bit and needs a facelift, but the basics are still intact.
One of the most important developments to emerge after the adoption of the Constitution was the internal market envisaged by Washington and Hamilton, who had been traumatized by the paralysis underthe Continental Congress. Indeed, Paul Johnson, the great English historian, once remarked that what Chief Justice Marshall (a protégé of Washington and Hamilton) did to ensure an internal free market was one of the greatest acts of judicial statesmanship since the Roman Empire.
Johnson was referring to Marshall’s strenuous application of the Supremacy Clause and his innovation of the Dormant Commerce Clause jurisprudence to eliminate regulatory barriers to free commerce between the states. This encouraged the emergence of the greatest economic power ever, which did so much to restore Europe after two World Wars and helped the dissolution of the Soviet Union. Putin is definitely trying to make a comeback, but, again, the basic structure to overcome his efforts is intact if we have the will to take advantage of it.
There has always been disagreement about whether the U.S. Constitution really does embody the key free market values that are being hotly debated today and that may well determine the durability of American Exceptionalism. Justice Holmes famously said in his dissent in the Lochner v New York case that the Constitution did not enact any economic viewpoint. But it appears that he later changed his mind, particularly in the context of free speech. The Justice had once been tolerant of government limits on speech, but after one prosecution too many he took the position that the best test of ideas was free competition in the marketplace.
This acknowledgement of marketplace competition, of course, cannot be limited to free speech. In fact, the Constitution embodies a free market bias – just think about the express protection for intellectual property rights, the independence of the judiciary (which is crucial to protection of the rights to contract and private property, generally) and the fundamental structural commitment to the kind of limits to government that are essential for a competitive free market to survive.
Finally, it must be added that religion and the moral values that flow from faith had as much to do with the economic and social success of America, and American exceptionalism, as any other contributing factor. Enlightenment figures such as Hume and Adam Smith understood the importance of moral fiber and character to success as much as any philosophers. For Smith (whose first book, after all, was “Theory of Moral Sentiments,”) a free market was the high moral ground because it developed the values of mutual trust, without which no successful economic system can prosper. So, let us pray that we do not lose our religious liberty and the values that go with it because, if they are compromised, American Exceptionalism will be diluted.
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C. Boyden Gray was White House Counsel during the Reagan and Bush Sr. Administrations as well as the U.S. Ambassador to the European Union. He is the founding partner of Boyden Gray & Associates, a law and strategy firm in Washington, D.C., focused on constitutional and regulatory issues.