The Rise & Decline of
Constitutional Government in America
by Thomas G. West and Douglas A. Jeffrey
A Publication of The Claremont Institute
This essay explains the principles of the American founding. It shows how those principles gave rise to constitutional government and a free society, and how freedom was extended to all Americans after the Civil War. It will also show how the Founders' principles were opposed by a new theory that arose in the Progressive Era; how that new theory finally came to dominate American politics in the 1960s; and how that theory has changed our government and our society, and threatens our liberty.
The Theory of the American Founding:
The Declaration of Independence
The Continental Congress declared America's independence on July 2, 1776, but Americans celebrate their independence on July 4. This was the day the Founders signed the Declaration of Independence, which announced the principles justifying American independence. To understand America, principles are important in a way they are not to other countries.
The principles of the Declaration are universal in character, derived from an understanding of human nature, or, as its first sentence puts it, the "Laws of Nature and of Nature's God." This is an important point: The American Revolution was not based on a tradition specifically tied to one people, such as "the rights of Englishmen," but on ideas or principles true for all men everywhere. These principles are the discovery of human reason, because they are rooted in human nature. Religion and divine revelation may confirm this discovery. A tradition may embody it. But they are knowable to any human mind reflecting on the nature of man.
What are these principles?
The Declaration's statement of principles begins: "We hold these truths to be self-evident, that all men are created equal. . . ." Equality is the first self-evident truth, upon which the others rest. The important question is: equality in what sense? Humans obviously differ in intelligence, talents, beauty, strength, and many other attributes. What then did the Founders mean by calling human equality a "self-evident truth"?
They meant something very definite: Human beings are equal in the life and liberty they are born with and deserve to keep. As stated in the first sentence of the Virginia Declaration of Rights of 1776, which became the model for several other states' Bills of Rights: "all men are by nature equally free and independent."
In other words, although human beings are unequal in many ways, no one human or class of humans is superior to another human or class of humans in the way that all humans, since they are rational creatures, are superior to dumb beasts. No one who is not mentally deranged is irrational in the way that all cattle are irrational. James Madison explains in The Federalist 54 that every human being, but no cow, is held morally accountable for violence committed against others, because every man is free to choose his behavior. To that extent, all men are equal and therefore deserve to be treated as such.
There is a second consideration pointing to the self-evident truth of equality. Not only does the lowliest person have some share in reason; the most excellent person has some share in selfish passion. However superior the best among us may be in regard to wisdom and virtue, no creature of flesh and bones is exempt from self-interest. No one can be presumed free from the temptation to abuse power over others. Therefore no human can be trusted with absolute power in the way that the most perfect being imaginable-God or an angel-could reasonably be trusted. "If angels were to govern men," wrote Madison in The Federalist 51, "neither external nor internal controls on government would be necessary."
Fifty years after he wrote the Declaration, shortly before he died, Thomas Jefferson reiterated the Founders' understanding of equality: "The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God."
The second self-evident truth announced in the Declaration is that human beings are "endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." This principle follows from, and explains, the principle of equality.
First, what is a "right"? According to the Founders, a right is a claim that a person may rightfully make against someone who would deprive him of what is his own. If you own something, like your clothes or your books, then you have a right to them. If someone takes them from you, then you have a legitimate claim against that person. He owes you your clothes or your books; he has a duty to give them back-or rather he has a duty not to take them in the first place.
A natural right, then, is a claim to what one rightfully owns by birth, or by way of one's nature as a human being. Natural rights are unalienable because they cannot be alienated or given away to someone else. We should note also that a right from one point of view is a duty from another: if you have a right to liberty, I have a duty to respect that right.
But how is it that a thing comes to belong to you? The Founders would have answered something like this: You are born with it, or you acquire it by means of something that is inherently yours, such as an effort of your mind or body, or by the free gift of someone else. You get your life from God and nature. You get your clothes or your books by paying for them with the money that you make from your own work or that someone voluntarily gives you.
It is only after you have acquired your property in some legitimate way that your right to own property comes into play. The Founders would not have said, as some people now think, that you have a "right" to decent housing, health care, recreation, or any other particular thing you want or need before you have worked to get them. That would mean that someone else has a duty to work to get clothes and books for you. This would be something like making that person your servant. It would be a violation of that person's right to liberty.
The Declaration specifically mentions three unalienable rights of human beings, or possessions that all men everywhere have by birth or nature: life, liberty, and the pursuit of happiness. No one may rightfully deny us these things. It is worth remarking that the Declaration does not proclaim a right to happiness itself. Happiness, like property, is not something we have by nature. Rather we are born with minds and talents that we are free to use to pursue happiness.
The Declaration says that these three rights are "among" our natural rights. We may be said to have others in addition-although these additional rights might also be seen as part of the right to liberty. Among the most important of these additional rights, as we may read in other official documents of the founding period, are the rights of conscience and property. These rights, like the rights of free speech and a free press, came to be among those protected in the Constitution's "Bill of Rights."
The right of conscience means religious freedom. As explained in the Virginia Declaration of Rights of 1776: "religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are entitled to the free exercise of religion, according to the dictates of conscience." Each of us has a right to worship God in his own way and time. No one may compel us to worship God in the way that he thinks best.
The right of religious liberty is not a right to exclude religion from public life, as is so often asserted now. In the minds of the Founders, religious liberty is certainly valuable as a means to prevent religious tyranny. Madison writes in The Federalist 51 that in a large republic, "the society itself will be broken down into so many parts, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects." But the same Madison, writing three years earlier in the Memorial and Remonstrance against Religious Assessments, said that the right of religious liberty "is in its nature an unalienable right. It is unalienable . . . because what is here a right towards men, is a duty towards the Creator. . . . This duty is precedent, both in order of time and degree of obligation, to the claims of civil society." The right to religious liberty follows from the duty that all human beings owe to God. The deepest reason for religious liberty is not to free man from God and religion, but to free him to perform his duties to God without being coerced into an obnoxious mode of worship by the fallible human beings in government.
As for property rights, they were at the heart of the dispute that led to the American Revolution. When Americans listed the rights of man, they often said "life, liberty, and property." Boston's "Rights of the Colonists" (1772) was typical: "Among the natural rights of the colonists are these: First, a right to life; secondly to liberty; thirdly to property."
Property rights can also be seen as a part of the right to liberty or, equally, as a part of the right to pursue happiness. As James Madison explained in an essay titled "On Property," "In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights." The idea of a right to property begins with the fact that each man owns himself-by nature each man is his own ruler. Because we own ourselves, and our labor, we are free to work and keep the fruits of our labor. And because one cannot be happy without some measure of property (i.e., clothes, food, shelter, and other things) and because it is necessary to make a living in order to acquire them, there is a natural right to work. Abraham Lincoln, a man who understood the principles of America as well as anyone, liked to call this the right of "free labor." "Every man," said Lincoln, "is born with two hands, and one head, and one mouth. The plain implication is that the head should direct those hands in the feeding of that mouth." The right to earn property, and to keep the property that one earns, is fundamental.
The doctrine of natural rights recognizes the natural equality and, at the same time, the natural inequalities in human nature. Insofar as human beings are rational creatures with equal claims to life and liberty, they are rightfully treated the same. Insofar as they differ, they are rightfully treated differently: the talented, the hardworking, and the virtuous are allowed to display their superior qualities. The principles of America encourage these high traits and many others. They challenge every equal human being to aspire to their best.
The third self-evident truth in the Declaration is "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." The first question this answers is, Why do we need government?
Outside of government, people are in what the Founders called a "state of nature." They have natural rights, but in this complete state of freedom (or rather anarchy) those rights are jeopardized. "[I]n a state of nature," writes James Madison in The Federalist 51, "the weaker individual is not secured against the violence of the stronger." In such a state, "even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves." Men living without government are tempted to act according to their selfish passions or interests rather than their reason. As Madison says, "If men were angels, no government would be necessary." That is, human beings are not perfectly rational, or good. As a result, death, slavery, and misery characterize the state of nature. Therefore people join to form governments to secure their natural rights to life, liberty, and the pursuit of happiness.
This self-evident truth also answers the question, How should government operate? As the Declaration explains, governments must derive "their just powers from the consent of the governed." The word just here means two things. First, the only legitimate powers of government are those that have been consented to by the people. For example, as the Declaration's list of grievances shows, government acts tyrannically, or unjustly, when it acts without obtaining the consent of the people. What the Founders called "republican government," then, is the only fully legitimate form of government. A republic, Madison wrote in The Federalist 39, is "a government which derives all its powers directly or indirectly from the great body of the people."
But while consent is necessary for government power to be legitimate, consent in itself is not the sole standard of legitimacy or goodness. That is, the people do not have the right to consent to unjust powers. Put another way: Just because the people have consented to something does not make it right. We may only rightly or justly consent to those powers of government that do not violate the unalienable rights of individuals.
And this points to the real challenge of self-government: Government must obtain the consent of the people, but the people must be of such a character that they will give their consent only to good or just measures. Consent must be enlightened consent, which means it must be consent with a view that the basis of one's own right to give his consent is the same basis of the rights of others to give their consent.
Consent has two aspects: consent in establishing government and consent in operating government. The first, which the Founders called the "social compact," is nicely defined in the Massachusetts state constitution of 1780 as an association "by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." This occurred in America, for instance, when elected representatives in each state wrote the state constitutions, and again when delegates elected by the people of each state voted to ratify the U.S. Constitution of 1787.
After the people join together to form a government, they must also give their consent, on a regular basis, to its operation. This requirement arises from the fact that the people are not only the source of political power, but that they retain their unalienable right to liberty and therefore may never delegate power to the government permanently. Thus the Declaration of Independence lists at least ten instances in which Britain violated the Americans' right to ongoing consent to government, expressed through elected representatives. For example, the king had refused to approve laws passed by colonial legislatures "for the accommodation of large districts of people, unless those people would relinquish their right of representation in the legislature, a right inestimable to them and formidable to tyrants only." The king had also "kept among us in times of peace standing armies and ships of war without the consent of our legislatures." Above all, Britain is condemned "for suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever."
It is not good enough that rights be secured by a king or other unelected rulers. When conditions are favorable, the form of government most consistent with the equal liberty we are born with is democracy. As Thomas Jefferson wrote: "the republican is the only form of government which is not eternally at open or secret war with the rights of mankind."
The Declaration's statement of principles concludes: "whenever any Form of Government becomes destructive of these ends, it is the Right of the people to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
This right of revolution follows logically from the principles above. Government exists to protect natural rights, and government derives its just powers from consent. If it is not doing this, the people should get rid of it and set up a new one.
The right to revolution is reflected in the early American conviction that the people have a right to keep and bear arms and to govern themselves in all local matters through local governments close to the people. James Madison wrote in The Federalist 46, "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."
The right to revolution does not mean that it is right or good to overthrow a government that is misbehaving in some ways but which is doing a tolerably decent job in most. The Declaration says: "Prudence indeed will dictate that governments long established should not be changed for light and transient causes." "Prudence" is practical wisdom or good sense. In this context it means that people should think long and hard before they try to overthrow a government that is protecting most people's rights most of the time. A revolution is a dangerous thing. It throws men back into the state of nature, where destructive passions will be unleashed and violence may become uncontrolled. Being a dangerous cure-a cure that may prove worse than the disease-revolutions should only be prescribed in circumstances where success and real improvement are likely.
God and Honor
A common twentieth-century criticism of the founding is that it enshrines the principle of self-interest at the heart of the regime. The Declaration speaks of rights, but critics argue that it does not seem to have much to say about duties. If rights come first, and if the first right is the right to life, it seems that our obligations to others are contingent on our rights. In other words, what seems to come first in the Declaration is selfishness-looking out for one's own life, liberty, and happiness.
John Locke, to whom the Founders looked as the ablest spokesman of the first principles of government, is sometimes said to teach a "selfish system of morals," in which one has no genuine moral obligations to others. This is arguably untrue of Locke, and it is certainly untrue of the Founders, who emphatically placed honor and duty ahead of narrow self-interest. The Declaration says that when a people is subjected to a long train of abuses aiming at absolute despotism, "it is their right, it is their duty," to change the government. As a sign that this duty is higher than one's own personal survival or selfish interest, the end of the Declaration affirms, "We pledge to each other our lives, our fortunes, and our sacred honor." The Founders' sense of honor taught them that they must be ready to sacrifice their lives and property for the sake of their duty, establishing and preserving a free government.
Honor and duty are superior to rights and self-interest. The Founders' clearest statement of this conviction occurs in the "Declaration of the Causes and Necessity of Their Taking up Arms," co-authored by Jefferson and John Dickinson, and approved by the Continental Congress in 1775: "We have counted the cost of this contest, and find nothing so dreadful as voluntary slavery. Honor, justice, and humanity, forbid us tamely to surrender that freedom which we have received from our gallant ancestors. . . . We cannot endure the infamy and guilt of resigning succeeding generations to that wretchedness which inevitably awaits them, if we basely entail hereditary bondage upon them. . . . [We are] with one mind resolved to die freemen rather than to live slaves." No "selfish system of morals" can account for the Founders' conviction that slavery and dishonor are worse even than death.
Another common misunderstanding of the Declaration is that it is hostile to religion in general, and Christianity in particular. Nothing could be further from the truth. In fact, instead of being indifferent to religion, the Declaration contains its own theological teaching. That is because the ultimate source of our rights and duties is God. There are four references to God in the Declaration:
- The "laws of nature and of nature's God" entitle the United States to independence.
- Men are "endowed by their Creator with certain unalienable rights."
- The Continental Congress appeals "to the Supreme Judge of the world for the rectitude of our intentions."
- The signers, "with a firm reliance on the protection of divine Providence," pledge to each other their lives, fortunes, and sacred honor.
The Founders believed in the separation of church and state in the sense that no religious sect was to be the official religion of the country. But they were far from condemning government support of particular religious doctrines. In fact, the principles of the nation depended from the very beginning on a particular "religious doctrine," namely, the Declaration's own theology of God as author of the laws of nature and source of the rights of mankind.
The political theory of the American founding-the natural rights theory-is grounded in universal principles derived from human nature, and requires of government two things: First, that it operate by the consent of the people, and second, that it secure the equal rights of individuals. This was a radical and unprecedented departure from European practice during the centuries leading up to the American Revolution. Those governments were based on religion or class, and they assigned rights unequally, in the belief that human beings are not created equal.