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 Modern Rejection of the Principles of the American Founding
For more than one hundred years there has been an organized and powerful movement to transform American constitutional government into a new form that has been called bureaucracy, the administrative state, and the welfare state. This modern revolution-which we will call liberalism, as it calls itself-is as radical as the American Revolution was in 1776. It began with a new theory of human nature and the human condition.
Critique of Natural Rights
At the beginning of the Progressive Era in the late nineteenth century, many educated Americans began to turn away from the natural rights theory of the founding. Their thought was greatly influenced by the doctrines of relativism and historicism-the denial of objective truth and the doctrine that "values" change over time. This rejection occurred on both the political right and the political left.
On the right, for example, William Graham Sumner wrote: "There are no dogmatic propositions of political philosophy which are universally and always true; there are views which prevail, at a time, for a while, and then fade away and give place to other views." On the left, Woodrow Wilson-pretending to agree with the Declaration but in fact rejecting it-wrote that the Declaration's unalienable rights to life, liberty, and the pursuit of happiness mean that "each generation of men [may determine] what they will do with their lives, what they will prefer as the form and object of their liberty, in what they will seek their happiness." In The New Freedom, Wilson openly criticized the Declaration as outdated bunkum, complaining that "some citizens of this country have never got beyond the Declaration of Independence, signed in Philadelphia, July 4, 1776."
In our time, again on both the right and the left, this rejection of natural rights is almost universal among intellectuals. Alasdair MacIntyre, for example, a conservative defender of tradition, scorned the idea of natural rights in his book After Virtue: "I mean those rights which are alleged to belong to human beings as such and which are cited as a reason for holding that people ought not to be interfered with in their pursuit of life, liberty, and happiness. . . . [T]here are no such rights, and belief in them is one with belief in witches and unicorns." And liberal Richard Rorty, one of the most influential philosophy professors in America, dismisses the Declaration's natural law argument as a "language game" that is no more true than another "language game" that would promote slavery over freedom. Nor is this bias restricted to intellectuals: when Clarence Thomas was nominated to the Supreme Court, his professed belief in natural law was treated by politicians and the media as if he had proclaimed the earth flat.
The rejection of the idea of natural rights required a new understanding of the purpose of government and its relationship with the people. This new understanding became the basis of modern liberalism and its redefinition of equality and rights.
The New Meaning of Equality
Just as the ground of the Founders' natural rights theory was a conception of human nature, the ground of the modern rejection of natural rights was a denial of human nature. Historian Richard Hofstadter's dismissal of nature in the 1940s was typically matter-of-fact, with an allusion to the theory of evolution: "[N]o man who is as well abreast of modern science as the Fathers were of eighteenth-century science believes any longer in unchanging human nature."
John Dewey, one of the twentieth century's most influential American thinkers, expanded on the idea that human beings have no nature. According to Dewey, men are born as empty vessels, as nothing in themselves. As such, the individual becomes a product of an historical context: "Social arrangements, laws, institutions . . . are means of creating individuals. . . . Individuality in a social and moral sense is something to be wrought out."
If human beings are nothing on their own, it follows that they can do nothing on their own. Intelligence, talents, and virtues, as well as rights-all the things the Founders said humans were born with-must be produced by the social order. According to Dewey, "The state has the responsibility for creating institutions under which individuals can effectively realize the potentialities that are theirs. . . ."
This theory reverses the relationship between the people and the government: rather than the people delegating power to the government, the government has to empower the people. It is not enough, as the Founders thought, for government to leave people alone and protect their rights by requiring others to leave them alone. Dewey viewed people as essentially needy or disabled, and it is precisely when they are left alone that this need or disability is greatest. The government of the New Deal in the 1930s worried about the needs and disabilities of workers, whereas today's government worries about the needs and disabilities of racial minorities, homosexuals, the disabled, and women. In all of these cases, the new role of government is to give those whom it considers most needy or disabled better treatment, and others worse.
In short, the denial of human nature leads from an understanding of equality in terms of natural rights to an understanding of equality as something to be produced by government through unequal treatment. President Lyndon Johnson officially announced this new conception in a speech at Howard University in 1965: "We seek . . . not just equality as a right and a theory but equality as a fact and equality as a result."
To achieve "equality as a result," rights had to be redefined. Rather than being rightful claims to one's own possessions, rights in the new view are rightful claims to the resources of others. Thus, rather than speak as the Founders did of rights to life, liberty, and the pursuit of happiness, Americans today speak of rights to housing and education and medical care and food stamps. In essence, "rights" have come to mean that people who are not as hard working, as talented, as responsible, or as fortunate have rightful claims on the money and resources of others.
Two other differences between the Founders' and the modern liberal view of rights should be noted. First, according to the Founders, rights adhere to individuals, whereas rights today are customarily assigned according to group membership (blacks, women, farmers, students, the elderly, etc.). Second, rights today are assigned: they are not seen as existing prior to government, but as government gifts.
These two understandings are mutually exclusive. One of the clearest public admissions of this came in a 1987 Supreme Court case: A man sued a government agency that had given a job to a woman who was admittedly less qualified. Justice William Brennan, speaking for the court, asked "whether the agency plan unnecessarily trammeled the rights of male employees" (emphasis added). His answer was no. In other words, modern liberals believe that it is perfectly acceptable for the government to trammel the rights of some citizens in order to give benefits to other citizens believed by government to be more worthy or more needy.
The Progressive Era denial of human nature and rejection of natural rights led to the adoption of a new goal for government: equal condition rather than equal rights. This goal requires the government to assign rights unequally. So far, it is primarily property rights that have been affected: redistribution of wealth is the operative mode of American government today. But government has also begun to reassign speech rights. Those who are thought too wealthy no longer have the right to publish whatever they wish. Government now limits that right through campaign finance laws. All this is counter to the principles of the founding. As Jefferson wrote:
To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers have not, exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the exercise of his industry and the fruits acquired by it.