Restore Your Community

UNDERSTANDING THE BASIC CONCEPTS THAT INFLUENCED THE FOUNDERS’ VISION

There are several concepts that are central to the Founders’ approach to governance:  liberty, natural law, the rule of law, limited government, popular sovereignty, civic virtue, tyranny of the majority, a republican form of government, federalism and separation of powers.

1.    Liberty and Freedom
The Founders’ concept of liberty and freedom was characterized by two principal elements.  First, they believed that each individual possessed certain God-given rights.  Second, they embraced the view that those rights were not positive claims on government for benefits such as housing, employment or health care, but rather were negative in the sense that rights are guarantees against government intrusion, arbitrariness and tyranny.

The Founders drew a sharp distinction between license and liberty.  The former meant the prerogative to do whatever one wished.  Liberty, on the other hand, meant the right and opportunity to do what one ought to do, which assumes that responsibility accompanies freedom and that a universal moral code governs the affairs of men.  The Founders shared the concept of ordered liberty, wherein liberty and responsibility were indivisible and government’s purpose was to protect liberty.

The drafters of the original state constitutions during the struggle for independence saw no substantial conflict between individual rights and the needs of community.  (See Robert C. Palmer, “Liberties as Constitutional Provisions, 1776-1791,” in Wm. E. Nelson & Robert C. Palmer (ed.), Liberty and Community:  Constitution and Rights in the Early American Republic (N.Y., 1987) at 55:

Communal needs that gave rise to state powers were important for individuals, when viewed in a social contract context.  Communal powers, when exercised in a properly structured, republican government, maximized freedom.  Similarly, liberties in state constitutions were principles, taken very seriously and highly valued but not so absolute or rigid as to endanger society.  Early state constitutions were neither wholly communitarian nor wholly individualistic.  Both labels are too simplistic for an ideology that perceived both an intrinsic relationship and a difference between individual rights and communal powers.

Edmund Pendelton proclaimed at Virginia’s 1788 ratification convention in Richmond: “There is no quarrel between government and liberty; the former is the shield and protector of the latter.”  Jonathan Elliot (ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Phila.: J. B. Lippincott, 1836), Vol. III, at 37.

Further reading:

• John Locke, Two Treatises on Civil Government (1690) (London:  Everyman’s Lib., 1942)
• Isaiah Berlin, “Two Concepts of Liberty,” in Henry
• Hardy & Roger Hausheer (eds.), The Proper Study of Man: An Anthology of Essays (N.Y., 1997)
• Alan Burris, A Liberty Primer (Rochester, N.Y., 1983)
• Ernest Barker (ed.), The Social Contract: Locke, Hume, Rousseau (Oxford U. Pr., 1960)
• Thomas Hobbes, The Leviathan (1651) (N.Y.:  Everyman’s Lib., 1950)
• Quentin Skinner, Hobbes and Republican Liberty (Cambridge U. Pr., 2008)
• John Stuart Mill, On Liberty (1859)
• James Fitzjames Stephen, Liberty, Equality, Fraternity (1874)
• Mark A. Beliles and Douglas S. Anderson, Contending for the Constitution:  Recalling the Christian Influence on the Writing of the Constitution and the Biblical Basis of American Law and Liberty (Charlottesville, Va.,      )
• C. Bradley Thompson (ed.), The Revolutionary Writings of John Adams (Liberty Fund, 2001)
• Gary T. Amos, Defending the Declaration:  How the Bible and Christianity Influenced the Writing of the Declaration of Independence (Charlottesville, Va.,      )
• Gordon S. Wood, The Creation of the American Republic, 1776-1787 (N.Y., 1989)

2.    Natural Law and the Derivation of Rights
The concept of natural law was embedded in, and provided a doctrinal basis for, the Declaration of Independence, the first words of which read:
We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness….

The natural law concept can be traced to the Old Testament and to Ancient Greece and Rome and was reinterpreted by John Locke (1632-1704), whose Two Treatises on Government greatly influenced the Founders.

The Roman lawyer Cicero (106 – 43 B.C.) articulated the concept of natural law that has shaped the contours of the higher law doctrine and the thinking of later contributors, including Locke, the lawgiver Emperor Justinian (c. 482 – 565 A.D.) and the philosopher-theologian Thomas Aquinas (c. 1225 – 1274).  In De Re Publica (The Republic), Cicero said:

It is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions….  We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it.  And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.

Edmund Burke (1729-1797), who is considered one of the most prominent conservative thinkers, did not share the Founders’ natural rights view as expressed in the Declaration of Independence.  Perhaps in reaction to the extreme position of natural rights theorists who supported the French Revolution, particularly Thomas Paine, Burke disclaimed any belief in the existence of individual natural rights.  (See Robert B. Dishman, Burke and Paine on Revolution and the Rights of Man (N.Y.: Scribner, 1971).)  Burke believed that man is, by nature, a social and political animal.  His natural state is the family and community.  Burke rejected the abstract natural theory of Jean-Jacques Rousseau (1712-1798), which perceives man as an atomized individual absolutely free of any familial, communal, moral or religious obligations.  Burke believed that the individual’s rights are derived and inseparable from the family and community into which he is born.

The original States also rejected Rousseau’s abstract natural rights theory.  The constitutions of those States reflected the view that every individual has obligations that accompany his rights.  This almost certainly derived from Locke’s social contract theory.  Locke contended that the natural state is not one of unamalgamated individuals, but one of families in a pre-political society.  Such a society is based on voluntary agreements.  Government is also established by agreement when men determine that it is necessary to form a government to secure their rights more effectively than they could secure those rights separately and without government.  According to Locke, the Law of Nature imposes obligations on every person, particularly the duty not to harm others; men are not free to do whatever they choose.

The Founders, like Locke, explicitly proceeded from their Christian faith.  Scripture charges children to obey their parents.  Parents have obligations to their children.  All men are bound by principles of justice, which concern the relations of the individual with his neighbors.  The Virginia Declaration of Rights (June 1776) provided “that it is the mutual duty of all to practice Christian Forbearance, Love, and Charity towards each other.”

The fundamental right to alter or abolish government, which Locke posited and the Declaration of Independence claimed, is not an individual right, but rather one exercised by “a Majority of the Community.”  (Va. Declaration of Rights)  Further, not all rights are “unalienable.”  The Founders recognized life, liberty and the pursuit of happiness as inherent and God-given.  Locke included the right to own property as such a right.  Other rights are guaranteed in federal and state constitutions.  Still others can be established or eliminated by statute or common law.   Silver v. Silver, 280 U.S. 117, 122 (1929).

Further reading:

• The Federalist No. 43
• John Locke, Two Treatises on Civil Government (1690) (London: Everyman’s Lib., 1942)
• Adrienne Koch and William Peden (eds.), The Life and Selected Writings of Thomas Jefferson (1998)
• Robert P. George, In Defense of Natural Law (Oxford U. Pr., 1999)
• Russell Hittinger, The First Grace: Rediscovering the Natural Law in the Post-Christian World  (Wilmington, Del., 2003)
• James Moore & Michael Silverthorne (eds.), Natural Rights on the Threshold of the Scottish Enlightment (Liberty Fund, 2002)
• Jean-Jacques Burlamaqui, The Principles of Natural and Politic Law (Th. Nugent & Peter Korkman, eds., 1747)
• Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature (1637) (A. Tooke, tr.)
• Bernard Bailyn, The Ideological Origins of the American Revolution (Enlarged ed., Harv. U. Pr., 1992)

3.    The Rule of Law and Constitutionalism
The concept of the rule of law is that laws properly adopted have supremacy over raw power.  Legal scholars trace this concept back to Athens, Greece in the Fifth Century, B.C.  (See Aristotle, Athenian Constitution.)   Under the Athenian Constitution, magistrates took an oath to govern according to the laws, and any private citizen could prosecute a magistrate for failing to honor that oath.

The concepts of the rule of law and constitutionalism are closely related.  In simplest terms, the rule of law means a state governed according to known rules which bind rulers and the ruled alike.  Constitutionalism means that governmental power is limited by a body of fundamental law, whether written or unwritten.

Cicero insisted that “law is the bond which secures these our privileges in commonwealth, the foundation of our liberty, the foundation-head of justice….  The magistrates who interpret it — all of us, in short — obey the law in order that we may be free.”  The rule of law requires that rules be generally applicable, appropriately published, capable of being complied with, not internally contradictory, understandable and not retrospective.  (See Richard H. Fallon, “‘The Rule of Law’ as a Concept in Constitutional Discourse,” 97 Colum. L. Rev. 1 (1997).)

Chief Justice John Marshall wrote in Marbury v. Madison, 5 U.S. (1 Cranch)137, 163 (1803): “The government of the United States has been emphatically termed a government of laws, and not of men.”  Under this concept, governmental power should not be exercised upon the whim or caprice of an agent of the government.  Laws should apply evenly to the weak and the powerful.  Courts should be neutral arbiters.  In Chapel v. Commonwealth, 197 Va. 406, 410, 89 S.E.2d 337, 340 (1955), the court said:  “It is a fundamental principle of government that the rights of men are to be determined by the law itself, and not by the let or leave of administrative officers and bureaus.”

A leading expert on administrative law, Kenneth Culp Davis, has criticized the foregoing description of the Rule of Law as unworkable in the complex, modern setting. Davis contended that it is not always possible to anticipate a situation with known principles or laws. His suggested restatement is:  “The rule of law is preferable to that of any individual to the extent that the law can be satisfactorily stated in generalized propositions, but rule by an individual may be desirable to the extent that the needs of justice call for individualizing.”

Further reading:

• Aristotle, Athenian Constitution (Harv. U. Pr., 1981)
• Friedrich A. Hayek, The Road to Serfdom (U. Chi. Press, 1944)
• Michael Oakeshott, “The Rule of Law” in On History and Other Essays (London, 1984)
• Richard H. Fallon, “‘The Rule of Law’ as a Concept in Constitutional Discourse,”  97 Colum. L. Rev. 1 (1997)
• K.C. Davis, Administrative Law Treatise §§2.10, 2.11, 2.12, §2.13 (2d ed., San Diego, 1978)
• St. George Tucker, View of the Constitution of the United States (1803) (Liberty Fund, 1999)

4.    Limited Government
The notion that government should be limited is closely related to the concepts of natural law, republicanism, popular sovereignty and constitutionalism.  It springs from the belief that power corrupts and that liberty is to be valued along with order and security.  Concentration of coercive power encourages the arbitrary treatment of individuals and groups.  Thomas Jefferson observed in 1774 that “history has informed us that bodies of men as well as individuals are susceptible of that spirit of tyranny.”  (A Summary View of the Rights of British America)
Because the Founders were keenly aware of the dangers of power concentrated in a relative few, they consciously designed a system of governance based on checks and balances that distributed governmental authority between the individual states and the national government, between three branches of the national government — legislative, executive and judicial — and within the Congress, between the House of Representatives and the Senate.  They were willing to make governance more complicated and cumbersome than if they had reposed all power in a national government consisting of a single branch.  Their choice reflected their desire to safeguard liberty.  The Bill of Rights, consisting of the first ten amendments to the United States Constitution, was added later as further protection against government abuse.

The Founders’ design involved one of the first attempts in history to reduce the governing rules of a nation to a written constitution that is ratified by the people themselves or their elected representatives.  The Constitution of the United States is a legal instrument that grants limited, enumerated powers to the national government and divides those powers among a bicameral legislature, the federal court system and an executive branch headed by the President.

The Constitution of the United States was drafted by representatives of the thirteen original States who met in Philadelphia in 1787.  The people of each of those States subsequently ratified the Constitution.  It was a governing instrument by which the people of each State delegated only certain limited powers of the various sovereign States to a national government.  The constitutions of the States and virtually all other sovereign governments around the world are quite different.  Those constitutions establish a government that has “unlimited” powers except as restrained by specific provisions of those constitutions (and, in the United States, by the U.S. Constitution as well), particularly a bill of rights or declaration of rights.  The Virginia Declaration of Rights, which was drafted by George Mason and adopted in 1776, is one of the most noteworthy of such guarantees of individual rights.  Our lives, liberty and property are at risk from abuses of state government as well as the national government.  It is important to remember that protection of our rights against an overreaching state government generally depends on whether there is language in the state constitution specifically guaranteeing such protection and whether the overreaching violates the federal Bill of Rights or other provision of the U.S. Constitution.

The Founders believed that individuals and free institutions were capable of addressing most social and economic needs without the involvement of government.  Government’s legitimate role is to minimize the conflicts that may arise when the free actions of persons and social institutions result in competing interests.  Governmental entities should defer to individuals and institutions more immediate to individuals unless those individuals and institutions cannot fulfill their proper functions.

Further reading:

• Federalist Nos. 41, 45, 47, 51
• J. G. A. Pocock, The Machiavellian Moment:  Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975).
• www.acton.org
• Bernard Bailyn, The Ideological Origins of the American Revolution (Enlarged ed., Harv. U. Pr., 1992)
• Milton Friedman, Capitalism and Freedom (U. Chi. Pr., 1962)
• Friedrich A. Hayek, The Road to Serfdom (U. Chi. Pr., 1944)
• Alan Barth, The Rights of Free Men (N.Y. 1984)

5.    Popular Sovereignty and Political Accountability
The Founders were in general agreement that Almighty God was the true and ultimate Sovereign.  In 1785, James Madison wrote:
[W]hat is here a right towards men, is a duty towards the Creator….  Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign

(Memorial and Remonstrance against Religious Assessments, presented to the Virginia General Assembly (1785))  Thus, when the Founders spoke of the people being sovereign, they did so with Madison’s reservation.

The idea that ultimate political power resides in the people themselves is a relatively recent one in human history.  The Virginia Declaration of Rights, which was drafted by George Mason and adopted in Williamsburg at a convention of delegates on June 12, 1776, states:  “That all Power is vested in, and consequently derived from, the People; that Magistrates are their Trustees and Servants and at all Times amenable to them.”  This statement is perhaps the first articulation of the concept of popular sovereignty contained in a written set of governing rules.

The concept of popular sovereignty is reflected in this statement by Virginia’s highest court:

[W]here a written constitution exists, it is the expression of the sovereign will of the people, and no arm of the government which owes its existence to that Constitution, as does the legislature, can violate this fundamental expression of the sovereign will.

City of Norfolk v. Chamberlain, 89 Va. 196, 204, 16 S.E. 730, 732 (1892).  The U.S. Supreme Court has said:
Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.

Yick Wo v. Hopkins, 118 U.S. 356, 369-70 (1886).  See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 803 (1995) (Kennedy, J., concurring).

Some in the Founding generation, particularly in Puritan New England, resisted the Lockean concept of popular sovereignty, which conflicted with the Puritan belief that political leaders receive their legitimate authority directly from God.  Popular governance also posed a threat to the power and influence of Puritan religious leaders.  This resistance was ultimately overcome by the writings of John Wise (1652-1725), who urged a democratic ecclesiastical polity and a civil government based on the natural law theory articulated by the German jurist Samuel von Pufendorf (1632-1694), and by the preaching of Jonathan Edwards (1703-1758), who adopted the natural law theory of Locke, Charles Chauncey (1705-1787) and Jonathan Mayhew (1720-1760), who believed that government is established by the consent of the people.  Samuel Adams (1722-1803), the Massachusetts legislator and inspirational leader of popular resistance to Parliamentary and Royal authority before and during the American War for Independence, believed in popular sovereignty and advocated the importance of civic virtue.

The very legitimacy of the government rests on the sovereignty of the governed and their inherent right and power to alter or abolish their government.  The concept of popular sovereignty would lose much of its strength if the people lack the means to hold accountable those to whom they have delegated power.   Such political accountablity is exercised in several ways, including electing officials, petitioning elected and appointed officials, and amending or abolishing the government.

Further reading:

• John Locke, Two Treatises on Civil Government (1690) (London:  Everyman’s Lib., 1942)
• Virginia Declaration of Rights (1776)
• Edmund S. Morgan, Inventing the People:  The Rise of Popular Sovereignty in England and America (N.Y., 1988)
• A. J. Beitzinger, A History of American Political Thought (N.Y., 1972)

6.    Civic Virtue
The Founders embraced the ancient concept of civic virtue, which was a principal characteristic of the Roman Republic.  They understood that a republican form of government was unworkable and unsustainable without civic virtue in the people.  Opponents of the 1787 Constitution – known as the Anti-Federalists – put greater stock in the importance of civic virtue than did the proponents – the Federalists.  The Federalists argued that civic virtue alone had never provided and could not provide appropriate stability for the Republic.  This did not mean that the Federalists believed that the Republic could be preserved without civic virtue.  Rather, they believed that what was required was a combination of a stronger national government and civic virtue.  James Madison argued at the Virginia ratification convention:

No theoretical checks – no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.

In The Federalist, No. 55, he stated that “republican government presupposes the existence of [civic virtue] in a higher degree than any other form.”

The freedom that the Founders valued and wished to preserve is always subject to abuse.  They understood that self-discipline, prudence and self-reliance were essential to maintaining the Republic and preserving freedom.  For example, Section 15 of the Virginia Declaration of Rights provides:

That no free Government, or the Blessings of Liberty, can be preserved to any People but by a firm Adherence to Justice, Moderation, Temperance, Frugality, and Virtue, and by frequent Recurrence to fundamental Principles.

The Founders’ focus on individual rights appears to conflict with the asserted need to instill civic virtue in the citizenry.  Although the two concepts are different, they can coexist and may even be mutually reinforcing.  Locke, who is often associated with rights-based individualism, appreciated the importance of communal relations in securing individual rights.  Civic virtue presupposes strong, self-reliant citizens who resist dependency on government.  Self-government, meaning a system that leaves to civil society those functions that can be managed by individuals and voluntary groups without direction, control or assistance from government, is impossible without personal initiative, entrepreneurship, intact families, vital communities, a shared moral code and a general willingness to do justice and, in certain critical matters, serve the interests of the larger community.  This requires a blending of individualistic and communal interests and forces.

The central assumption of ideological libertarianism is that order, stability and prosperity will be achieved by the uncoordinated actions of individuals acting in isolation and without government control or community participation.  It proceeds on the principles that everything in human life can be reduced to the economics of the market place and that all actions are undertaken on a quid pro quo basis.  Such a system cannot function as its proponents maintain.  In fact, the idealized and unbridled liberty they insist upon has never produced a stable, prosperous society. Indeed, liberty itself cannot be maintained under those circumstances. Liberty is possible only in a stable civil society that is ordered by custom and a common moral code.

The poisonous radicalism that characterized the French Revolution and the Terror that followed never took hold in the early years of the new American Republic.  At least one of the contributing factors was the attachment of Americans to tradition and religion. The Founders, being Christian almost to a person, recognized that men were compelled to comply with the moral code set out in Scripture. Christians are admonished to love their neighbors as themselves (Mark 12:31)  They are also told to do unto others as they would have others do unto them.  (Luke 6:31)  James Madison remarked that the Republic could not be preserved unless citizens were willing to be guided by the Ten Commandments.

Further reading:

• Herbert J. Storing, What the Anti-Federalists Were For:The Political Thought of the Opponents of the Constitution (U.Chi. Pr.. 1981)
• Richard Dagger, Civic Virtue:  Rights, Citizenship, and Republican Liberalism (Oxford U. Pr., 1997)
• George W. Carey (ed.), Freedom and Virtue:  The Conservative/Libertarian Debate  (Wilmington, Del., 1998)
• Alexis de Tocqueville, Democracy in America (1835, 1840)
• Hannah Arendt, The Human Condition (Chi., 1958)

7.    Tyranny of the Majority
James Madison feared “the superior force of an interested and overbearing majority.”  Thomas Jefferson wrote to Madison on March 15, 1789 that “[t]he tyranny of the legislature is the most formidable dread at present….”  Jefferson perceived the potential for oppression of individuals and minorities at the hands of elected officials, who were likely to respond to the political pressure exerted by a majority of the people.  John Adams expressed a similar concern about an overreaching majority in an 1815 letter to Jefferson.  The Founders opposed tyranny in every form, including mob rule.

The Constitution of Virginia was crafted to protect individuals and minority interests against overbearing majorities.  (See A. E. Dick Howard, Commentaries on the Constitution of Virginia (U. Pr. of Va., 1974), Vol. I, at 36.)  The same can be said of the Bill of Rights and, to a limited extent, the structural provisions of the United States Constitution.

Alexis de Tocqueville argued that democracies always tend to gravitate toward a tyranny of the majority.  He concluded that the American Republic exhibited three forces that limited that tendency.  First, the vast expanses of the new United States provided opportunities for everyone, making it less likely that one group would use its political power to oppress another, smaller group.  Second, the judicial system and Americans’ respect for law gave a substantial degree of protection to individuals and minority interests.  Third, the mores of the American people ? what Tocqueville called “the habits of the heart” ? reduced the risk of abuse by majorities.

Further reading:

• The Federalist No. 10
• Alexis de Tocqueville, Democracy in America (1835, 1840)

8.    Republican Form of Government
There is no reference to “democracy” in the U.S. Constitution, but Article IV, Section 4 of that document does refer to “a republican form of government”:  “The United States shall guarantee to every State in this Union a Republican Form of Government….”  What is a Republican Form of Government?

James Madison described the term “republic” in Federalist No. 39:
[W]e may define a republic to be … a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure for a limited period, or during good behavior.
***

[T]he members of the judiciary department are to retain their offices by the firm tenure of good behavior.

Madison contrasted the republican form of government with democracy, unequivocally favoring the former over the latter.  What Madison referred to as “pure democracy” differs from his definition of a “republic” only in that there are no elected or appointed representatives of the people in a pure democracy, as there are in our constitutional system.

Some contend that a republic differs from a democracy in that it protects individuals and minority interests against an overbearing majority.  That protection is not guaranteed by a republican form of government.  It is assured by specific protections such as those contained in the Bill of Rights, the checks and balances in the Constitution, and the prudence, restraint and virtue of the people themselves.

A majority of the people of each of the ratifying States approved a Constitution in 1788 and a Bill of Rights several years later that limit the power of the majority to abuse or encroach upon the rights of individuals and minority interests.  Thus, the people have set limits on their own power in order to protect the life, liberty and property of each individual.  This protection is a function of the concept of the rule of law and not a function of the characteristics of the republican form of government.

The U.S. Supreme Court has said that the distinguishing feature of the republican form of government is the right of the people to choose their own governmental officers and to pass their own laws in virtue of the legislative power assigned to their representative bodies.  In re Duncan, 139 U.S. 449, 461 (1891).  See also Downes v. Bidwell, 182 U.S. 244 (1901).

The American Republic, as designed by the Founders, has essential features peculiar to it that protect the rights of individuals and minority interests against overbearing majorities and the abuse of governmental power.  These anti-majoritarian features are under attack by those who see any restraint on majority rule as an assault on democratic principles.  For example, these advocates of  pure democratic institutions urge the replacement of the Electoral College with the direct election of the President and an overhaul of the U.S. Senate to make it reflect the one-person/one-vote rule of Reynolds v. Sims, 377 U.S. 533 (1964).

The Founders understood the dangers of majoritarian rule in a democracy, even a representative democracy.  The restraining features they inserted in the Constitution have contributed to a stable republican form of government in the United States that should not be abandoned in pursuit of an abstract democratic ideal.

Further reading:

• The Federalist No. 10
• The Federalist No. 39
• Thomas Pangle, The Spirit of Modern Republicanism:  The Moral Vision of the American Founders and the Philosophy of Locke (U. Chi. Press, 1988)

9.    Federalism
Federalism is an organizational arrangement employed by the Founders for the purpose of preventing the concentration of power in the new national government established by the Constitution of the United States.  The Founders deliberately divided power between the States and the national government in an experiment never before tried on a large scale.

The “constitutionally mandated balance of power” between the States and the federal government was adopted by the Framers to ensure the protection of “our fundamental liberties.”- Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985).

Each level of government ? the States and the national government ? derives power directly from the people.  Each claims a constitutional prerogative to act without further authorization from the other government level.

This concept of dual sovereignty and dual citizenship was certain to cause tension and controversy.  The Founders appreciated that they were establishing a structure of overlapping powers that sacrificed efficiency and effectiveness in the national government in order to minimize the likelihood that power would be concentrated at that level and abused by national officials.

In his First Inaugural Address, Ronald Reagan said:  “All of us need to be reminded that the federal government did not create the states; the states created the federal government.”  The Virginia Ratification Convention adopted the Constitution in 1788 despite the substantial concerns of many delegates about the potential for abuse by a new national government.  Patrick Henry, George Mason, James Monroe and other opponents argued that the threat of tyranny posed by the Constitution’s grant of power to the national government warranted outright rejection of the new scheme.  James Madison, who led proponents at the Virginia Convention, insisted in response that the national government would be able to exercise only those limited powers granted to it by the States in the Constitution, particularly those granted to Congress under Article I.
The opponents of the Constitution were not satisfied by Madison’s argument.  Although they were narrowly defeated at the Virginia Convention on the ultimate vote to adopt the Constitution, they were successful in inserting language in the formal order by which Virginia ratified the document stating that the powers delegated to the national government “may be resumed by [the People] whensoever the same shall be perverted to their injury or oppression….”

It was not long after ratification that Madison’s view of the limited powers of the national government was challenged by Alexander Hamilton, who persuaded Congress to establish a national bank on the reasoning that such an exercise of power was authorized by the Necessary and Proper Clause of the Constitution.  Hamilton contended that because the Commerce Clause granted Congress the power to regulate commerce between the States, it had the implied power under the Necessary and Proper Clause to enact laws that relate to that regulatory function.  Madison replied that such attenuated logic would allow Congress to do whatever it chose.  Hamilton countered that he did not perceive the Necessary and Proper Clause to grant such open-ended power to Congress.  He conceded, for example, that Congress could not authorize the construction and funding of canals without an amendment to the Constitution.  In the 20th century, however, Congress saw no such limitation on the national government’s power to build massive works of internal improvement, such as the Tennessee Valley Authority water projects and the Interstate Highway System.

The rejection of Madison’s notion of federalism by the U.S. Supreme Court in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (upholding a federal statute establishing the second Bank of the United States) set the Court on a path that has tilted the federal-state balance decidedly in favor of the national government.  The Court has construed the General Welfare Clause, the Commerce Clause and the Necessary and Proper Clause in ways that have allowed Congress to expand the power of the national government beyond any view of federalism expressed in The Federalist Papers or other arguments of proponents of ratification.  Constitutional amendments, particularly the 14th, 15th, 16th and 17th, have also contributed to consolidation of power at the national level.

The opponents of the proposed Constitution were not persuaded by the argument that every power that was not specifically delegated by the States to the federal government was not within its jurisdiction.  They were particularly concerned about the Necessary and Proper Clause, fearing that it would be the source of unlimited power for a new federal government.

The Constitution was ratified only because several States, including Virginia, conditioned their ratifying orders on the adoption of a Bill of Rights.  Madison acknowledged that the Virginia convention would not have ratified the Constitution without his agreement to add a Bill of Rights, but warned that a Bill of Rights would serve as “a mere parchment barrier” when most needed because the federal government would be the instrument of the majority, which could always endanger liberty.  Jefferson disagreed with Madison, believing that a Bill of Rights would provide a court with a basis for restraining an overreaching majority.

The Bill of Rights includes the 10th Amendment, which provides that powers not delegated to the federal government or prohibited to the States were reserved to the States.  That provision has proven to be of little value in restraining the expansion of power of the federal government.  Because the effect of the 10th Amendment is largely dependent upon what powers the federal courts determine have been delegated to the federal government by implication in the specific clauses of the Constitution, that Amendment has not had the effect intended by its proponents.  The U.S. Supreme Court has greatly expanded the jurisdiction and powers of the federal government beyond what the proponents urged in 1788.  The only remaining utility of the 10th Amendment is its restraining effect on the federal government’s ability to regulate States as States.  See New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997).  The federal government violates the 10th Amendment when it mandates regulatory action by the States or commandeers or regulates the officers and agents of the States.

The Court noted in New York v. United States, that:
it makes no difference whether one views the question at issue in these cases as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or one of discerning the core of sovereignty retained by the States under the Tenth Amendment.

Id. at 159.  Under either approach, the Court is determining whether Congress has overstepped the boundary between federal and state authority.
The boundary between the powers of the federal government and those of the States has obviously shifted since 1789 in favor of the federal government.  Where the boundary lies for purposes of predicting the outcome of future cases is far from clear.  In recent years, the U.S. Supreme Court has held that Congress cannot establish private causes of action against States for violations of the Fair Labor Standards Act and federal anti-discrimination statutes.  It has also invalidated provisions of the Gun Free School Zones Act.  In other decisions, the Court has ruled that Congress violated the 10th Amendment to the U.S. Constitution in requiring local sheriffs to conduct background checks under a federal gun control statute and in mandating that States take possession and title to hazardous wastes.

In more recent cases, the Court has again taken an expansive view of the jurisdiction of the national government at the expense of the States.  It has authorized congressional enactment of causes of action against States for violating the Family and Medical Leave Act and federal bans of the possession and use of marijuana for medical purposes, even where a State explicitly permits those acts.

Further reading:

• The Federalist No. 32 (Hamilton)
• The Federalist No. 51 (Madison)
• Forrest McDonald , State’s Rights and the Union:  Imperium in Imperio, 1776-1876 ( U. Pr. Kan., 2000)
• Raoul Berger, Federalism: The Founders’ Design (U. Okla. Pr., 1987)
• Leonard W. Levy, Origins of the Bill of Rights (Yale U. Pr., 1999)
• Richard H. Leach, American Federalism (N.Y., 1970)

10.    Separation of Powers
In addition to dividing power between the States and the national government, the Founders divided power among three branches of the national government.  This division is predicated on the notion that there are three distinct governmental functions: making law, enforcing the law and interpreting the law.

The Constitution’s Article I establishes Congress, consisting of a House of Representatives and a Senate, and vests it with legislative power.  Article II establishes the Office of President and assigns to that office the prerogative to veto enactments of Congress and the power and duty to take care that the laws are faithfully executed, to manage foreign affairs, to pardon, to appoint judges and executive officers and to command the armed forces.  Article III establishes an independent federal judiciary, nominated and appointed by the President, subject to the consent of the U.S. Senate.

As with the Founders’ division of power between the States and the national government, the separation of powers was made an essential element of the Constitution to reduce the likelihood that a majority would or could abuse power.  The Founders were conscious that the separation of powers would lead to inefficiency and tension between the various branches of government, but considered the arrangement necessary for the protection of the rights and interests of individuals and those groups which were not in the majority.

Although the concept of separation of powers was hardly novel at the time the U.S. Constitution was framed in 1787, the Founders’ formal provision for such separation in the document was one of the earliest instances of this feature in a written constitution.  The Articles of Confederation, which the Constitution replaced, had made no provision for separation of powers. The Founders, especially James Madison, were greatly influenced by Montesquieu’s The Spirit of the Laws, which was published in 1748.  Montesquieu was a forceful proponent of a division of powers and the assignment of each of three powers to a separate department of government.

At the Constitutional Convention, James Wilson favored a strict view of the concept of separation of powers. He perceived the three brances as akin to airtight compartments with no branch exercising any powers of the other branches. James Madison’s view was more pragmatic and reflected the reality that the Constitution itself gave each branch some of the powers of the other branches.  Federalist  No. 47.  For example, the President has the power to veto legislation and Congress has the power to approve or disapprove the President’s nominees to key executive officials. The U.S. Supreme Court has adopted Madison’s view. United States v.  Nixon, 418 U.S. 683, 703 (1974).

Further reading:

• Charles Secondat, Baron de Montesquieu, The Spirit of Laws (1748)
• John Adams, Thoughts on Government (1776)
• The Federalist Nos. 47. 48, 49, 50 and 51
• Katy J. Harriger (ed.), Separation of Powers: Documents and Commentary (C.Q. Pr., 2003)
• M. J.C. Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 1967)
• Jessica Korn, The Power of Separation: American Constitutionalism and the Myth of the Legislative Veto (Princeton, 1996)
• Tom Campbell, Separation of Powers in Practice (Stanford U. Pr., 2004)

OTHER IMPORTANT CONCEPTS
The Founders did not explicitly refer to certain other concepts in drafting the principal documents produced during the struggle for independence and the establishment of the government of the United States, but those concepts were at work as the Colonies fought to achieve independence and as the Founders launched the American Experiment in governance, which has continued for more than two and a quarter centuries.  Among those were the concepts of mediating institutions, community, the free market, fatalism of the multitude and the Aristotelian concept of the State.

11.    Mediating Institutions
Private, voluntary entities, such as the family, the neighborhood, religious congregations and associations of many kinds, are known as mediating institutions.  They serve as buffers between the State and the individual.  Without such entities, the State could readily overpower individuals.  Mediating institutions also provide a flexible mechanism to solve problems that governmental organizations cannot.

Members of mediating institutions are able to test their opinions in a setting that is more secure and inviting than a public forum.  This is a crucial protection against the power of the State, which tends to expand at the expense of liberty.  Alexis de Tocqueville noted in Democracy in America that:
If each citizen did not learn in proportion as he individually becomes more feeble and consequently more incapable of preserving his freedom single-handed, to combine with his fellow citizens for the purpose of defending it, it is clear that tyranny would unavoidably increase together with equality.

***

Americans of all ages, conditions, and all dispositions constantly unite together.  Not only do they have commercial and industrial associations to which all belong but also a thousand other kinds, religious, moral, serious, futile, very general and very specialized, large and small.  Americans group together to hold fêtes, found seminaries, build inns, construct churches, distribute books, dispatch missionaries to the antipodes.  They establish hospitals, prisons, schools by the same method.  Finally, if they wish to highlight a truth or develop an opinion by the encouragement of a great example, they form an association.  Where you see in France the government and in England a noble lord at the head of a great new initiative, in the United States you can count on finding an association.

Thomas Jefferson appreciated the importance of mediating institutions:  “These little republics would be the main strength of the great one.”  The family is the primary and most important of the mediating institutions and has been considered so for millennia.  As Confucius said in the fifth century before Christ’s birth: “[W]anting good government in their states, they first established order in their families….”  The Old Testament was equally clear about the importance of family.  It was Edmund Burke, however, who first articulated in detail the role of families and other mediating institutions and the need to assure their autonomy in order to allow them to perform their essential functions.  Burke’s view that power should be devolved as much as feasible to the smallest unit that is capable of exercising that power foreshadowed the doctrine of subsidiarity that is formally embedded in the current Constitution of the European Union.

The Founders were building on the legal and traditional concepts of the family that prevailed in the 18th century.  John Adams wrote:
[T]he foundations of national Morality must be laid in private Families.  In vain are schools, Accademies [sic] and universities instituted, if loose Principles and licentious habits are impressed upon Children in their earliest years.

Lyman H. Butterfield (ed.), Diary and Autobiography of John Adams (Cambridge, MA, 1962), vol. 4, p. 123.  Alexis de Tocqueville later observed:  “There is certainly no country in the world where the tie of marriage is more respected than in America….”  Democracy in America, Book Three, Ch. 6.  He also concluded:
But among democratic nations all citizens are independent and weak; they can achieve almost nothing by themselves and none of them could force his fellows to help him.  Therefore they all sink into a state of impotence, if they do not learn to help each other voluntarily.

Id., Ch. 4.
Tocqueville contended that if traditional social relationships weakened, individuals would become isolated and unprotected against encroachment by government.  The Founders perceived this threat and tried to minimize it by limiting the role of government.  They recognized that structural restraints on government by themselves would not assure a strong civil society.  That depends on voluntary commitment to traditional institutions and mores ? something that government cannot compel.

The principle of subsidiarity reinforces the importance of mediating institutions.  The Oxford English Dictionary defines subsidiarity as the principle that a central authority should perform only those functions that cannot be performed more effectively at a level close to the individual, the family and the local community.  Several nations have included this principle in their constitutions.  It is a fundamental principle of the law of the European Union and of Roman Catholic doctrine.

Further reading:

• Treaty Establishing the European Community, Article 5(2) (2003)
• Treaty of  Maastricht (1992)
• Pius XI, Quadragesimo Anno, I (1931)
• Peter L. Berger & Richard John Neubaus, To Empower People:  The Role of Mediating Structures in Public Policy (Wash., 1975)
• Peter L. Berger, Richard John Neuhaus and Michael Novak, To Empower People: From State to Civil Society (AEI, 2009)

12.    Community
The English word “community” derives from the Old French word “communité,” which in turn comes from the Latin word “communitas,” meaning “fellowship” or “organized society.”  In popular usage, the term “community” has been applied to circumstances far from its original meaning.  For example, it has been extended by some to encompass all of mankind (for example, “the world community”).

As used here, the word is limited to voluntary, cohesive social groups organized around shared values within a shared, relatively small geographic location.  Such social groups are institutions vital to inculcating values, providing       mutual support and reinforcing a scheme of duties generally embraced by the members.

In the late 19th century, Ferdinand Tonnies drew a distinction between such a group, which he labeled “Gemeinschaft,” and another type of group, which he labeled “Gesellschaft,” that lacks the tight social cohesion of the former type, but is organized around a specific interest or set of narrow interests motivating each of its members.  In his Democracy in America, Alexis de Tocqueville described the activities and importance of both types of social groups.  Gemeinschaft is characterized by relationships that are intimate, familiar, sympathetic and mutually interdependent with shared social consciousness.  Gesellschaft involves relationships that are casual, transitory, without emotional investment and based on self-interest.

A healthy civil society requires both types of groups.  Unless these voluntary associations assume responsibility for a multiplicity of social and economic problems, there is no likelihood of limiting government.  The two types of groups are well-suited in different ways to address problems.  The broad variety of ways that these groups are able to undertake problems enables citizens to solve many problems more appropriately, expeditiously and efficiently than government can.

The most important of these groups is the family, which functions as the primary unit of society and the most vital institution of self-governance.  It is where children are provided their most essential needs (for example, housing, food, shelter and protection from danger).  It is where the initial and most effective education, socialization and aculturation occur.  It is also where republican virtues are most effectively instilled and nurtured.  When families perform these functions properly, the demand for expansion of government to fill those needs is obviously reduced.   On the other hand, when families fail, government’s role is certain to grow.

The value of community was well-understood at the time of the Founding.  Cicero wrote:  “We were born to unite with our fellow man, and to join in community with the human race.”  Aristotle advocated a self-sufficient community bonded together by shared practices and values.  St. Augustine said in The City of God (426 A.D.) that man is by nature a social creature and that only by associating with his fellow man and forming a community with them can achieve his potential.  The Founders appreciated the importance of community not only through such historical writings, but even more through their own experience.

Further reading:

• Robert Nisbet, The Quest for Community (Oxford U. Pr., 1953)
• Eric Voegelin, The New Science of Politics (U.Chi.Pr., 1952)
• Allan Carlson, The “American Way”:  Family and Community in the Shaping of the American Identity (Wilmington, Del., 2003)

13.    Property, Contracts and Free Markets
The Founders agreed with Locke that private property was essential to the preservation of liberty and republicanism.  Jefferson’s famous statement in his First Inaugural Address, which is quoted below, echoes Locke’s belief that every man has a right to the product of his labor.
A wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.  This is the sum of good government, and this is necessary to close the circle of our felicities.

Although those Founders who drafted the United States Constitution in 1787 barely acknowledged Adam Smith’s  An Inquiry into the Nature and Causes of the Wealth of Nations, which was published in 1776 before the idea of a market economy had matured, they nevertheless safeguarded the right to contract (Article I, § 9).  This right presupposes the right to acquire, possess and convey property, which is essential to a market economy.

The private enterprise system that Adam Smith described as being ordered by an “Invisible Hand” is predicated on the ability of individuals, businesses and other private entities to enter into contracts freely and without control or direction by government.  At the time of the drafting of the Constitution, American commercial law was an element of common law, which had been developed in English courts and in the Colonies, and “had a certain Adam Smith severity, a certain flavor of the rugged individual.”  (Lawrence M. Friedman, A History of American Law (N.Y.:  Simon & Schuster, 2d ed., 1985) at 264).  Blackstone’s Commentaries, which had a profound effect on the courts and lawyers in the Colonies, recognized a right to negotiate and bargain freely.  The Constitution was ratified in 1788 by the states, which functioned under common law rules that facilitated the market economy that was to flourish in the 19th century.

Neither the Founders nor Adam Smith believed that men are purely economic actors or that self-interest is the only human motivation required to secure prosperity and stability.   Smith’s Wealth of Nations must be read together with his Theory of Moral Sentiments, which was first published in 1751 and repeatedly revised until 1781.   Smith was influenced by Classical Stoicism and Christian moral philosophy.   He believed that prudence, self-command and Christian charity were necessary and desirable.  So did the Founders.

Jefferson considered government intervention in the economy “in practice so inseparable from abuse that it is best to leave citizens free in their pursuits with neither aid nor hindrance.”  (Letter to M. L’Hommande, 1787).  He also wrote:  “In political economy, I think [Adam] Smith’s Wealth of Nations the best book extant.”  (1790 letter from M. Carey to Thomas Mann Randolph, quoting Jefferson, in Writings of Thomas Jefferson (Ford ed.), Vol. VII, p. 31)  In his First Annual Message to Congress in 1801, he said:  “Agriculture, manufacturers, commerce and navigation, the four pillars of our prosperity, are the most thriving when left most free to individual enterprise.”

Further reading:

• John Locke, Two Treatises on Civil Government (1690)(London, 1942)
• Blackstone, Commentaries on the Laws of England (7th ed., London, 1775)
• J. J. Spengler, “The Political Economy of Jefferson, Madison, and Adams,” in America Studies in Honor of William Kenneth Boyd (Durham, 1940)
• James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (Oxford U. Pr., 1992)
• James Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge U. Pr., 1980)
• Galliard Hunt (ed.), The Writings of James Madison (N.Y., 1906), Vol. V, pp. 376-377
• Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations
• Forrest McDonald, We the People: The Economic Origins of the Constitution (U.Chi.Pr., 1958)

14.    Fatalism of the Multitude
The Englishman James Bryce noted in The American Commonwealth, which was published in 1888, that the greatest danger to our political system was not the tyranny of the majority, but rather the fatalism of the multitude.  This same observation was made by opponents of the proposed United States Constitution at the 1788 Virginia ratification convention.  The condition that concerned Bryce and the Anti-Federalists has unquestionably been realized today.  Many Americans are disengaged, alienated, bored and frustrated.  In a sea of more than 350 million people in the United States, it is not surprising that so many feel that, as individuals, they are an insignificant part of the political system.

Further reading:

• James Bryce, The American Commonwealth (London, 1888)
• Virginia Ratification Debates (1788) in Jonathan Elliot (ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Phila., 1836)

15.    The State and Civil Society
In Western social and political thought, there are two fundamentally different concepts of the State.  The first is the view of Plato and others who followed (for example, Thomas Hobbes, Jean-Jacques Rousseau and Jeremy Bentham) that the State virtually displaces or extinguishes all other forms of association.  Under that view, there is little or nothing between the individual citizen and the State.  The second view is that of Aristotle and subsequent thinkers (for example, Jefferson, Edmund Burke and Lord Acton), who rejected Plato’s notion of the unitary State.  They recognized a distinction between civil society and the State.

As Robert Nisbet has contended in Twilight of Authority:
A political government may be nominally democratic or republican, but it cannot be a genuinely free government if the powers of the state have reached out to encompass all spheres of social, moral, economic, and intellectual existence.  Conversely, a government monarchical or oligarchical in structure can be a free government if ? as has been the case many times in history ? it respects the other institutions of society and permits autonomies accordingly in the social and economic spheres.

The Founders clearly adopted the Aristotelian view.  They believed that most important activity occurred beyond the ambit of the State.  Individuals, families and voluntary groups of all kinds are able to address problems even where the State’s involvement is minimal.  The notion that the American Republic would become the Regulatory State or the Welfare State that we know today would have appalled the Founders.

Further reading:

• John Locke, Two Treatises on Civil Government (1690) (London:  Everyman’s Lib., 1942)
• The Federalist Papers
• Bernard Bailyn, The Ideological Origins of the American Revolution (Enlarged ed., Harv. U. Pr., 1992)
• Plato, The Republic (D. Lee tr:, London, 1987)
• Aristotle, Politics
• St. Augustine, The City of God (M. Dods tr., N.Y., 1950)
• Leo Strauss and Joseph Cropsey (ed.), History of Political Philosophy (3rd ed., U. Chi. Pr., 1987)
• Jean L. Cohen & Andrew Arato, Civil Society and Political Theory (MIT Pr.,1994)

Initially published on September 17, 2009.

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