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.
Slavery and Civil Rights
The controversy over slavery leading up to the Civil War illustrates in dramatic fashion the problem ofmreconciling consent with equal rights. Founder John Jay wrote: "That those who know the value of liberty, and are blessed with the enjoyment of it, ought not to subject others to slavery, is, like most other moral precepts, more generally observed in theory than observed in practice. This will continue to be too much the case while men are impelled to action by their passions rather than their reason."
The Incomplete Founding
The American Revolution was founded in opposition to slavery: "We are taxed without our own consent. . . . We are therefore SLAVES," wrote John Dickinson in 1768. All the leading Founders opposed black slavery for the same reason they supported American independence-the principles of the Declaration of Independence. "Slavery," wrote Benjamin Franklin, "is an atrocious debasement of human nature." Because of the logic of the Revolution, opposition to slavery grew quickly in the Northern and Middle states. It even began to take hold in many Southern states. In 1776, slavery existed in virtually every part of world. Slavery was legal in every state in America in 1776. But by 1787 the principles of the American Revolution were beginning to have an effect on slavery in America, and slavery was well on its way to abolition throughout the north, while hundreds of thousands of slaves had been emancipated in the South.
However, the progress toward emancipation was incomplete. One important question in the South that stymied Jefferson and many other men of good will was: Would it be possible to live together in peace and fellow citizenship with the former slaves, once they are free? There was a real fear of a race war, especially in those parts of the South where the slaves outnumbered the free. There was the obvious problem of prejudice on one side, and deep resentment on the other. There was a concern that the condition of the blacks was so degraded that it would be hard or impossible for them to become responsible citizens. Most people agreed that slavery was wrong in the abstract. But how to get rid of slavery lawfully and peacefully was the great difficulty. However impractical it may have been, the solution that many looked to was voluntary colonization of ex-slaves in a country that would be willing to receive them. But this hope to proved too cumbersome and unpopular, with both whites and blacks, to make any headway.
According to Madison, slavery was the most divisive question at the Constitutional Convention. Its opponents were faced with the choice of allowing slavery to continue in the short term or breaking up the union. This is an important point to understand: If the opponents of slavery had been unwavering in their demand that slavery not be permitted under the new Constitution, the Southern states would have left the already weak Articles of Confederation and formed their own union, which certainly would have been built around strong protections of slavery. Not one slave would have been freed, and the prospects for ending slavery in the future would have been grim. Instead, however, the delegates to the constitutional convention made several concessions to slavery, and chose to tolerate slavery as a necessary evil, thus ensuring that the union would remain intact. In this sense the American founding was incomplete. Slavery was allowed to continue to exist. But at the same time, a union was formed based upon the principles of the Declaration of Independence, thus making the elimination of slavery a moral and political necessity.
For various reasons, the Founders had faith that slavery would eventually die out on its own, without a crisis of union. When it became clear that this would not occur-indeed, during the first half of the nineteenth century, slavery became more entrenched-Americans faced another choice. They could keep their slaves and reject the founding principles. Or they could affirm their principles and take measures to place slavery, in Abraham Lincoln's phrase, "in course of ultimate extinction." A split between these irreconcilable positions led to the Civil War.
The Civil War and the
Completion of the Founding
South Carolina Senator John C. Calhoun and other Southern leaders in the 1830s turned against the principles of the founding. They rejected the idea of equal rights, attacked the Declaration of Independence, embraced the idea that black slavery was a "positive good," and demanded extension of slavery westward into the territories acquired in the Louisiana Purchase and Mexican War. Some Northerners, like Illinois Senator Stephen Douglas, hoped to walk a middle road in the dispute, allowing slavery to expand without throwing out the principles of the Founders. Douglas tried this impossibility by asserting that the Founders never meant to include blacks when they wrote the Declaration and by supporting the idea of "popular sovereignty," whereby citizens of territories and new states would be permitted simply to vote slavery up or down.
Lincoln refuted Douglas's distorted reading of the history of the founding and rejected the idea of popular sovereignty, arguing that "one cannot logically say that anybody has a right to do wrong." He recalled Northerners to the Declaration, which he placed at the center of his rhetoric during the 1850s. With the new Republican Party he rallied a national majority to stop the extension of slavery. Through his speeches and later his conduct of the war, he brought the nation back to its original principles.
The Civil War resolved the long-smoldering issue of slavery, through the Emancipation Proclamation in 1863 and later the Thirteenth and Fourteenth Amendments, abolishing slavery and extending citizenship and the protection of fundamental civil rights to the newly freed slaves. The Fifteenth Amendment secured voting rights to the former slaves and their descendants. The American Revolution was now complete, at least in principle.
From the 1870s to the 1890s, these legal changes were enforced with some success in the South, and with better success in the North. But in spite of the best post-war efforts of Congress, the citizenship rights of blacks were not secured in the South. An imperfect accommodation between whites and blacks was eventually reached, which denied blacks in the South not only the right to vote, but even some of their property rights. In the North, blacks became equal citizens, with the right to vote, to serve on juries, and to make the same use of their property and talents as other citizens.
When the decision was finally made in the 1964 Civil Rights Act and 1965 Voting Rights Act to abolish the last vestiges of the "Jim Crow" restrictions on voting and property rights in the old South, it was based on an appeal to the theory of the founding-the principles of the Declaration, often appealed to by Martin Luther King and others in the civil rights movement.
For three-quarters of a century, slavery was a stain on America, a blatant violation of its first principles. The paradox of its existence here was brought into stark relief when the argument arose in the 1830s that slave ownership is a property right-an irrational and immoral argument because it forgets that property rights flow from the right to liberty, the very right that prohibits slavery.
In the years before and during the Civil War and again in the civil rights era of the 1950s and '60s, the principles of the American founding were the impetus for justice. Lincoln said it best about the connection between the principles of the founding and civil rights in an 1858 speech commenting on Fourth of July celebrations. There are many Americans, he noted, who are not blood descendants of the American Founders:
If they look back through this history to trace their connection with those days by blood, they find they have none; they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us. But when they look through that old Declaration of Independence, they find that those old men say that "We hold these truths to be self-evident, that all men are created equal," and then they feel that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as if they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration, and so they are.
That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.