Of all that makes America – the subject of this symposium – nothing has been more crucial or consequential than our having constituted ourselves as a people on sound moral, political, and legal principles – the “self-evident truths” set forth in our Declaration of Independence and then instituted through our Constitution as corrected by the Civil War Amendments – for those principles are the very foundation of our liberty.
Yet many Americans today seriously misunderstand them, while still others reject even their preconditions – reason, objectivity, and free speech. Focusing on a history of genuine sins – and oblivious or indifferent to the distinction between the principles and their execution by imperfect people – these critics claim that we’re a fundamentally flawed nation. Theirs is a utopian vision, the apotheosis of a collectivist turn the nation took during the Progressive Era.
I’ve told this tale in these pages before, but it’s worth retelling, with a focus on those foundational principles and their implications. Our war for independence secured them, practically, but that war was no mere revolt against oppressive rule. Its deeper meaning is revealed in the motto on the Great Seal of the United States, commissioned on the evening of July 4, 1776, Novus Ordo Seclorum: a new order of the ages (is born). “We the people” were ordering our fortunes. And so, we begin our tale by plumbing, very briefly, our founding documents.
The Declaration of Independence
America’s birth certificate, the Declaration of Independence, memorialized the moment when we declared ourselves a distinct people, a new nation. Were it a mere political document, however, it would not have so endured in our national consciousness. Nor would it have inspired countless millions around the world ever since, leading many to leave their homelands to begin life anew under its promise. It has so inspired because, fundamentally, it is a profound moral statement. Invoking “the Laws of Nature and of Nature’s God,” common to all who will reason, it was written not only to declare but to justify our independence.
In a few brief lines, penned near the start of our struggle for independence, the Founders distilled their moral and political vision: we were a nation of free people, endowed with equal natural rights to life, liberty, and the pursuit of happiness, secured by governments instituted for that purpose, their just powers derived from the consent of the governed.
Notice the order of things: the moral vision comes first, the political and legal vision drawn from it, second. The Founders were concerned ultimately with the principles of legitimate government, but those rest on moral principles. And the most basic of those is individual freedom, the equal right of all to pursue happiness as we wish, provided we respect the same right in others. Thus, equality, so misunderstood today, is for government to secure only insofar as it concerns equality before a law of equal basic rights.
Contrast that vision with today’s democratic order, which begins with government, increasingly conflates moral and legal rights, and dispenses rights, at best, as transient majorities will them, but more commonly as special interests manipulate the levers of power, rendering us all dependent on government in so many ways, while politicizing everything in its wake. For the Founders, rather than politics determining our rights, it was morality limiting politics and framing law: in short, liberty through limited government dedicated to that end. They were concerned mainly about what government could do to them – look at the Bill of Rights – not what it should do for them.
Indeed, when they turned to government, they wrote: “That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” Government is thus twice limited: by its end, to secure our rights; and by its means, which must flow, if they’re legitimate, from our consent. But in its many contexts, from ratification to periodic elections, consent can never be more than imperfect – the potential for the tyranny of the majority is ever present. Yet here’s the silver lining in that: given the practical limits of consent, and our basic right to individual freedom, we derive a presumption against government and for living most of our lives freely, in the private sector. We’re not, nor should we ever be, “all in this together,” with everything subject to political determination. Government should be our last resort. For many today, it’s their first. Here’s how the Framers guarded against that.
We see their approach to political legitimacy throughout the Constitution. In the Preamble, all power rests initially with “We the People,” who “do ordain and establish this Constitution.” Government does not give us our rights: we already have them – our natural rights. We give the government its powers. The first sentence after the Preamble says that: “All legislative Powers herein granted shall be vested in a Congress.” By implication, not all such powers were “herein granted.” Article I, Section 8, shows that Congress has only 18 such powers or ends. And the Tenth Amendment, the last documentary evidence from the founding period, shows that powers not granted to the federal government, nor prohibited to the states, are reserved to the states – or to the people, never having been granted to either level of government. Thus, federalism and individual freedom, respectively. Add the Ninth Amendment, which says that, in addition to the rights enumerated in the first eight amendments, others “retained by the people” shall not be “denied or disparaged.” Thus the natural rights we never gave up when we left the state of nature to create government. There, in a nutshell, is the theory of the Constitution: a sea of rights, most secured by the states under the common law; islands of federal power, authorized by the people through ratification.
But in addition to the enumeration of federal powers and federalism, other constitutional restraints included: the separation of powers, with each branch defined functionally; a bicameral legislature, with each chamber constituted differently; a unitary executive with veto power, chosen through the Electoral College; an independent judiciary with implicit power, under our written Constitution, to check the political branches; and periodic elections, not to expand federal powers, a power that rests with the people through ratification, but to fill constitutional offices. All of that is explained in the Federalist, written to assuage Anti-Federalists who wanted even more limited government. There wasn’t a socialist on either side.
The Framers knew, of course, that the Constitution’s oblique recognition of slavery, made necessary to secure unity among the 13 states, was inconsistent with their founding principles. They hoped the institution would wither away over time. It did not. It took a Civil War and the ratification of the Civil War Amendments to end slavery, to provide federal remedies against state violations of our rights, and thus to “complete” the Constitution by incorporating at last the grand principles of the Declaration – in law, if not, alas, in fact.
With the rise of progressivism late in the 19th century, plus an ever-latent populism, that constitutional design came under systematic assault. Progressives were social engineers. Coming from the elite universities of the Northeast, enamored of the new social sciences, and looking to European political models, they were eager to bring change through government. Woodrow Wilson complained that the Constitution was a straitjacket – it was – while Justice Oliver Wendell Holmes, Jr. deferred often to political majorities. Still, in the early decades of the 20th century the courts tended more often to enforce constitutional restraints on expansive government, especially after Franklin Roosevelt and his New Deal came to power.
Things came to a head after the landslide election of 1936 when Roosevelt introduced his infamous threat to pack the Supreme Court with six new members. Uproar in the nation ensued: not even the 4 to 1 Democratic House would go along. Nonetheless, the Court got the message – the famous switch in time that saved nine. It began effectively rewriting the Constitution without benefit of constitutional amendment. In 1937 it gave vastly expanded readings of both Congress’s power to tax and spend “for the General Welfare of the United States” and its power to regulate commerce “among the States,” thus unleashing the modern welfare and regulatory states, respectively. In 1938 it bifurcated the Bill of Rights and instituted a bifurcated theory of judicial review, effectively reducing economic liberty to a second-class status. And in 1943 the Court enabled Congress to delegate ever more of its legislative powers to the now ever-expanding executive branch agencies – the modern administrative state where most of our law today is made, executed, and adjudicated by politically unaccountable bureaucrats, thus undermining the separation of powers principle.
With that New Deal constitutional revolution, our Constitution for limited government was effectively inverted: the presumption was now for government programs and against liberty, except for certain “fundamental” rights as selected by judges. During his first term, Roosevelt ignored the White House faction that argued that his programs would require a constitutional amendment. Indeed, here he is writing to the chairman of the House Ways and Means Committee in 1935: “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.” But perhaps no one put this new vision more starkly, and honestly, than Rexford Tugwell, a principal architect of Roosevelt’s programs. Reflecting on his work some three decades later, he wrote: “To the extent that these new social virtues [i.e., New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.” They knew exactly what they were doing; they were turning the Constitution on its head.
The modern administrative state has followed and grown exponentially, the redistributive and regulatory state we know and love so well. But as we’ve come to demand ever more goods and services from governments at every level – and have politicized everything from business to education, health care, the arts, news (NPR), and the rule of law itself – we’ve also grown less willing to pay for all that we demand. So, we borrow. The national debt today exceeds $30 trillion – that’s trillion – and unfunded liabilities vastly exceed that. Worse still, those debts are growing, even as our major “entitlement” programs will soon exhaust their so-called trust funds. As history demonstrates, this cannot end well.
The original design was one for individual liberty – and individual responsibility. It was meant to limit the scope of government, mainly by limiting the ends of government and the powers of government officials, thus to discipline them. But it was meant also to discipline us, the people. The core misunderstanding of so many today is that government was created to solve our every problem, from health care to childcare, education, housing, inequality, student debt, and on, and on, ad infinitum.
Grounds for Hope
But all is not lost, yet, for elements of the Constitution remain, and in recent years we’ve seen them employed. There is first, federalism. True, in 1913, when progressivism was ascending, two constitutional amendments enhanced the centralization of power in Washington: the Sixteenth Amendment, creating the federal income tax; and the Seventeenth Amendment, which provided for the direct election of senators who then became more interested in their constituents than in their states as states. But states retain enough independent sovereignty to enable the original design for “competitive federalism” to work. As we’ve seen for some time now, people and firms are voting with their feet to find that mix of taxes, regulations, and even social policy that they wish to enjoy. The political market will restore discipline, eventually, if the federal government does not intervene.
Second, over the last few decades we’ve seen our independent courts – the envy of every other nation – rediscover our written Constitution in numerous ways. In a seminal 1995 decision, the Supreme Court revived the doctrine of enumerated powers – albeit only at the edges – when it invoked “First Principles” in holding, for the first time in 58 years, that Congress had exceeded its authority to regulate interstate commerce, a finding the Court has since repeated several times. More recently, the Court has also taken steps to rein in the administrative state, which has become a law unto itself. And in the rights area, here too courts have been increasingly active in restoring the original understanding of freedom in several domains – the economy, religion, education, and more.
Third, speaking of education, and the politicization thereof, here especially there is reason for hope, not least because the decline of educational standards at every level goes far toward explaining our current situation. That can be addressed only by getting government monopolies out of the business, for education is a private good, like other such goods, notwithstanding government’s legitimate interest in the welfare of children. Recent court decisions from around the country have opened that possibility.
Finally, the franchise today is wider than it has ever been, and our elections are generally fair. Guaranteed by the documents that make America America, those elections are crucial. James Madison, the principal author of the Constitution, wrote in Federalist No. 51: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” I have outlined those auxiliary precautions and the moral principles on which they rest. It is now up to us, the people, to become “the primary control on the government” through our votes and our attention to the principles that define us as a nation.
No less than Benjamin Franklin alluded to that when he was asked, upon leaving Independence Hall at the conclusion of the Constitutional Convention, what kind of government the Framers had given us: “A republic,” he replied, “if you can keep it.”
Roger Pilon, Ph.D., J.D., is the inaugural holder of the Cato Institute’s B. Kenneth Simon Chair in Constitutional Studies. He is the founding director emeritus of Cato’s Robert A. Levy Center for Constitutional Studies and the founding publisher emeritus of the Cato Supreme Court Review.