The Founding Isn't The Problem — It's The Solution
|Topics:||Constitution • Founding Era & History|
|Sponsors:||Administrative Law & Regulation Practice Group|
Traditionally, the Fourth of July has been a day for thankful celebration of the precious blessings of independence and liberty bequeathed to us by our revered Founders. Not so much this year. The Founders, the principles of natural human equality and liberty they fought for, and the institutions they established are all being denounced in strident terms like racist, unjust, and oppressive. The Founding itself is being denounced as a sin that irredeemably condemns the Founders’ posterity. Faced with such outrageous accusations, it is essential for Americans to reacquaint themselves with the real significance — the exceptional historical significance — of everything that is marked by the Fourth of July. If we do so, we will rediscover a fundamental truth. The Founding isn’t the problem — it’s the solution.
The most basic decision that the members of every society must make is how to define the place of the individual in the society — from there, the relationship of the individual to the group, the distribution of legitimate authority, and the system of government. In any system of government, ultimate authority, or sovereignty, must reside somewhere. For most of recorded history, in most places, sovereignty has been located in the head executive, the ruler: the king or queen, warlord, tribal chief, military commander, or party chairman.
In such a system of government, the ruler is seen as the embodiment of legitimate state power. The scope of the sovereign ruler’s legitimate authority is defined and limited only by his ability and inclination to exercise power. The sovereign ruler is effectively answerable to no one, and certainly not to the people, who are understood primarily as subjects.
This system, in practice, often saw individual rights turned into nothing more than malleable artifacts of the ruler, with their scope and substance and tenure entirely dependent upon the ruler’s determinations and dispensations. The economic and legal and social status of persons, their liberty, their very lives are contingent upon their relationship with the ruler.
In 1776, our Founders turned this traditional concept of state sovereignty, and the paternal relationship of the ruler to the people, upside down. In Philadelphia, on the Fourth of July, for the first time in history a nation was founded on the proposition that the people themselves are sovereign.
The Founders held that all people are created by God possessing in equal measure certain natural rights that, taken together, entitle each person to lead the life and pursue the happiness of his or her own choosing, free from state tyranny and limited primarily by the need to respect the right of others to do the same. The rights of the people are inherent in their shared, sacred humanity. The people’s rights are not created by the ruler; rather, they come from the hand of God and pre-exist both the ruler and the government.
The Founders explained that the purpose of the government they created — in fact, the only rightful purpose of any government — is to recognize, respect, and protect the pre-existing natural rights of the people. Faithful adherence to this purpose is the essential precondition of the government’s legitimacy and the people’s consent to its rule.
It is all there in the second paragraph of the Declaration of Independence: the heart and soul of our nation and the foundation of a government “of the people, by the people, for the people.”
The Founders clearly understood that they were establishing an exceptional nation. Madison wrote that Americans had launched a “revolution for which precedent could not be discovered.” Indeed, the revolutionary nature of the events in 1776 was so widely understood and accepted that the new American government saw fit to place on the Great Seal of the United States the motto Novus Ordo Seclorum or “A New Order for the Ages.” The Great Seal is still printed on the back of every dollar bill.
After an ineffectual first try at national government with the Articles of Confederation, our forefathers met again in 1787, when they drafted a constitution that in its structure and substance reaffirmed the Declaration by establishing a federal government based on the delegated authority of a sovereign people, one that possessed only those powers that were specifically enumerated and carefully allocated to one of its three separate branches. In light of the Articles’ failure, the Founders strove to create a government that was powerful enough to protect the natural rights of the people, but they were careful not to construct something so powerful as to threaten those rights through the exercise of unbounded power. In structuring the Constitution to bound the jurisdiction of the government and power of its officers, the founders established the rule of law in America. This is because the essence of the rule of law is restraint of otherwise unbounded power. So, by their great and good work the Founders bestowed upon their new nation the bounteous blessing of a government committed to the protection of the people’s natural rights through the rule of law.
Years later, as he fought to save the Founders’ legacy and make good on their promise — written in words, though not yet followed in deed — that America would abide by the principle that all men are created equal, Lincoln would refer to the Constitution in structural terms as a frame of silver surrounding the “apple of gold” — the Declaration of Independence. Indeed, Lincoln understood the Declaration’s teaching that all mankind is created equal to be the “electric cord” that links “the hearts of patriotic and liberty-loving men.” Reinforced by Lincoln’s leadership, America would maintain its commitment to the Declaration and the Founders’ Constitution for many years following the Civil War. As a result of this commitment, America enjoyed unparalleled political, social, and economic progress.
To be sure, Americans and many of their leaders often fell far short of the principles of our nation’s founding. The men who wrote the Declaration themselves owned slaves. But many believed the institution to be fundamentally wrong, some freed their slaves, and all committed to the words: “all men are created equal.” It was their hope that by creating the Union, they put slavery on the path to ultimate extinction. Their principles served as a standard against which to judge their own conduct, a standard that helped us to correct what we were and come closer to what we should be, a nation steadfastly dedicated to the proposition that all persons are created equal.
Despite the manifest blessings of the Founders’ legacy, as the 20th century unfolded, some Americans began to question the principles and institutions of our Founding in light of the many challenges that then confronted the country: large scale industrialization, urbanization, mass immigration, labor unrest and the threat of world war and revolution. Certain politicians and intellectuals — Woodrow Wilson an embodiment of both — thought that the principles of natural rights, liberty, and limited government contained in the Declaration and Constitution were outdated relics of a simpler past that dangerously undercut the ability of the government to effectively deal with the challenges that confronted it. Wilson and others believed they had more “progressive” ideas for the updated government they thought America needed.
Wilson and his fellow progressives turned away from England and traditional liberalism as sources of political inspiration. Instead, they turned to Imperial Germany and a Prussian model of consolidated administrative government, largely unhindered by constitutional constraints. Impressed by the prerogatives and regimenting efficiency of a dominating German bureaucracy, the pacifying effect of the German welfare system, and the exhilarating implications for state power contained in German philosophy, the progressives sought to create nothing less than a “new republic” to meet the challenges of the modern era.
In this so-called new republic, the progressives replaced the Founders’ concept of inalienable natural rights protected by a limited government of delegated authority and enumerated powers allocated to separate branches. The progressives replaced the Founders’ legacy with the age-old authoritarian concept of malleable rights created and then distributed and redistributed by a consolidated government exercising far-reaching executive authority to advance its ever-evolving policies and reward its supportive constituencies.
In reality, the self-proclaimed progressives undertook to implement a concept of government that that is more correctly understood as regressive — indeed, counter-revolutionary — because of its clear conflict with the principles of the American Revolution.
Supreme Court Justice Louis Brandeis captured this regressive mindset perfectly when he wrote in a 1921 opinion that the “rights of property and liberty of the individual must be remolded from time to time, to meet the changing needs of society.” Franklin Roosevelt would later assert that, “Democratic government is a relation of give and take between rulers and the people. In this relationship, rulers have been given power on consideration that the people be granted certain rights by the rulers. The task of statesmanship has always been the redefinition of those rights in terms of a changing social order.” (Emphasis added.)
This view that rights are merely the malleable artifacts of government rulers is the core concept that continues to define and drive the progressives’ concept of government and the modern administrative state. That concept of government is, it seems to me, the root cause of the most serious problems we face as a nation, including the problems revealed by the angry and frequently violent demonstrations that have swept across our land this summer. The divisive allegations, the poisonous extremes of identity politics, the growing assault on freedom of speech and religion, the ongoing zero-sum struggle among competing constituencies with each of them railing against the “others,” all of these problems are best understood as the bitter fruit of the same regressive mindset, one that rejects the self-evident and unifying truth of a shared humanity and a sovereign people, one that locates sovereignty in Roosevelt’s “ruler” while reducing the people to the status of factionalized subjects.
Those now calling for justice should realize that justice, true and full, for all those who suffer any depredation of their natural rights can only be obtained when the rule of law is administered in an evenhanded manner, with steadfast devotion for and continued adherence to the principles embodied in the Declaration and Constitution. The Founders created an exceptional nation, and they were great statesman. As humans, of course, they were fallen and flawed men of the times in which they lived, just as we are fallen and flawed persons of the times in which we now live.
But the Founders stand out in history, and deserve to be revered, because they founded an exceptional nation based upon the timeless principle that all persons are alike in the only ways that really matter. We all share a sacred humanity. If we understand this and recognize it in our fellows, then we can restore the precious sense of community and comity that are essential for a free society to survive and all its people to thrive.
America was founded as an exceptional nation and it always be an exceptional nation so long as we remain faithful to the bedrock principles of the Declaration; so long as we understand that, as President Kennedy once said, our rights come not from the generosity of the state but from the hand of God; so long as we understand that exceptionalism is measured not by the ever-expanding exercise of state power but by the determination to restrain state power and respect the natural rights and inherent human dignity of every individual. America will always be exceptional so long as we realize that we are an exceptional nation because, and only because, each one of us is exceptional.
The Founders’ legacy is not a divisive, racist, or oppressive burden to be scorned. If we repudiate our founding principles and institutions, we will throw away the real political hope we have to heal the divisions that afflict us. We should, in fact, embrace and work to restore the Founders’ legacy because it uniquely embodies a powerful unifying vision of one nation, under God, united and dedicated to the steadfast pursuit of liberty and justice for all.
Happy Fourth of July!
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