Freedom and Order

CHAPTER FOUR (Draft)

When the first European settlers came to North America and dispersed into the forests and across the open plains, they had only their own initiative, ingenuity, and self-reliance to depend upon. No one was there to counsel them concerning the requirements for survival. Both freedom and responsibility were defined by harsh realities.  Intrepid settlers also relied on one another as neighbors, so long as each took responsibility for themselves.

Self-reliance and the necessity for personal responsibility is empowering, and it fosters mutual respect among neighbors.  Whining and complaint don’t fly, however tough the circumstances.  We will soon find ourselves coming full circle to a time when certain requirements of the American frontier are becoming necessary once again.  The physical circumstances look different, and our independence as self-sufficient individuals is generally gone, but the challenges will increasingly resemble those of an earlier time when we were forced to stand on our own feet, depending on inventiveness, cooperation, and reliability in the context of local community.

In the early years of European settlement, American frontier life required little organization other than that prescribed by the traditions of English common law, and common decency.  But, where the population became more concentrated, it was not long before undisciplined enthusiasm and competitiveness roiled the social order.  Thinking people soon found themselves concerned about growing social conflict and the danger of majority rule, which threatened to suppress individual initiative and minority liberties.

Democracy was a new idea 200 years ago.  The Constitutional Convention of 1787 struggled with concerns about the growing intensity of divisiveness in the colonies, and recognition that a future Republic would see changes that were impossible for them to imagine.

Life bore little resemblance to the complexities of today.  Libertarian sentiments were strong, and there was a natural fear of the social constraints and political oppressiveness colonists had so recently fled in their European past.  There were strong feelings about protecting the freedoms they knew in their daily lives.

Despite their sympathy with this viewpoint, the Founders recognized that the natural strains of social, political, and economic differences could only intensify.  Majority factions had no compunctions about suppressing the interests of anyone who differed with them.  Given a perspective drawn from European history it was easy to imagine a violent and tumultuous future.

The Constitution of the United States is the child of this tension, and a product of the determination to create a dynamic Republic capable of protecting freedoms and yet absorbing the forces of conflict and change that would surely come.

The Constitution is a legal document, not a guide to rational behavior.  It is designed to provide the stability upon which liberty depends.  It provides a structure for governance and a set of practical rules.  However, it does not supply the values and attitudes, or the crucial understanding of cooperation, upon which its’ effectiveness must rest.

This little book is largely devoted to addressing this challenge.  Before addressing the future, however, let us first place our current challenges in historical context, and consider the foundational principles and institutions Americans already possess.

How do we understand the true meaning of freedom, and what are the requirements of freedom in a political process?  How has the character and vision of the American experiment evolved since the American colonies were first settled by Europeans more than 300 years ago?  And, how did the delegates at the Constitutional Convention of 1787 formulate a structure for governance that would preserve a balance of freedom and stability, and a means for implementing social and economic responsibility that might prevail well into a future they could only barely imagine?

The means for stability are written into the structure of the Republic.  Political instability is a function of self-interest or lack of cooperation and compromise, which can only be corrected through restraint, responsibility, and reasoned foresight.

We stand today at an extraordinary turning point.  Let’s not throw away our inheritance and attempt to start over from nothing.

Americans have been provided with a carefully considered model for governance that has protected us from most forms of excess for 200 years.  Where the mistakes engendered by misjudgment or selfishness have corrupted good governance, the unique structure of our republican form of government has guided a return to reason, however tough the medicine.  It works when we allow it to work.

Ours is a nation of both principles and laws.  This facilitates the process of confronting our problems, addressing our differences, and, most difficult of all, learning to listen to one another respectfully – and attentively.

The Constitution of the United States provides us with a uniquely effective structure within which to manage our affairs, and it will continue to do so as long as we understand and respect the reasoning with which it was conceived.  It was not intended to outlaw foolishness, and it has not.  Rather it was intended to permit a new nation to emerge and prosper while protecting minorities from the majority and the people from the government.

The framers of the Constitution recognized that our liberties can only be defended by confronting the natural human propensity for imposing ourselves on one another whenever possible.

The document was extremely controversial when it was first proposed.  Most Americans in 1787 were naturally jealous of their independence and suspicious of all government. There was however, another fear that equaled or surpassed that of uncontrolled government, and that was the fear of mob rule, or the domination of minorities by a majority.  Consequently, when the proposed Constitution was made public it proposed a stronger central government than had been expected.  At the same time, it offered an entirely new and unique approach to controlling government, with a structure designed to secure protections for both individuals and groups.

The fact that the Constitution is not a straight-jacket, but allows society and culture to breathe, to respond to changing circumstances and to evolve over time, has allowed us to get in trouble from time to time.  We can have very close elections, we can misjudge people and circumstances, we can make mistakes.  But, we have the freedom to learn, to transcend misperceptions and misunderstandings, to correct our mistakes.  And, the passions of factionalism, however intense, are restrained from imposing themselves on either minority or majority.

To understand how and why we depend upon the Constitution as we navigate through our present danger, it will be useful to understand both the carefully reasoned manner with which it was conceived and the negative reaction that it at first inspired.  To this end, it can be instructive to review some of the numerous essays and polemics that were published throughout the colonies during the period in which the proposed document was being considered for ratification.

A series of 85 commentaries were published in 1787 and 1788 by three members of the Constitutional Convention for the purpose of supporting ratification.  The three writers, who originally shared the pseudonym, “Publius”, were Alexander Hamilton, John Jay, and James Madison. Later consolidated into a single volume as The Federalist, the assembled papers were said by Thomas Jefferson, another participant at the Convention, to be “the best commentary on the principles of government, which ever was written,”[i]  a view many legal scholars agree with today. The Federalist remains an authoritative text often cited in major court cases and has appeared in the debates surrounding virtually every constitutional crisis.  Columbia Law Professor Robert A. Ferguson has written that “…no citizen of the world can afford to ignore The Federalist, despite its mysteries and arcane limitations.”  Professor Ferguson continues:

“Its wisdom on common political problems cannot be gainsaid.  Like every major work of political science and social theory, this one must also be understood with its integrities in mind.  Value lies not in the ability to quote selectively from The Federalist, a favorite ploy in both politics and law, but in coming to grips with writings that envisage and then explain how a new kind of nation, an uncertain experiment at best, could thrive on the American strand.  In the success of the United States, now the oldest republic in the world, Publius continues to speak to the Twenty-first century, but his words offer more than confirmation.  The reader will find a poignant series of cautionary tales in these pages.  The many warnings about correct governance in The Federalist protect the rule of law and should be required reading for both ruler and ruled.”[ii]

Readers are encouraged to investigate the issues reflected in the intense debate that led to ratification.  In the end, the outcome turned out not to be in question except in New York, where the State Constitutional Convention passed it by only three votes.  But, the debates remain instructive and bear a strong similarity to many of those we find ourselves engaged in today.

For our purposes here, I refer you to the manner in which the framers of the Constitution addressed several inevitable dangers to both fundamental freedoms and effective governance.

In The Federalist, Number 10, James Madison argues that there is no more important a purpose in structuring a sound government than that of limiting the “violence” of factionalism.  Responding to the current issues prevalent in the colonies immediately following the Revolutionary War, he writes:

“Complaints are everywhere heard…, that our governments are too unstable; that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

Does this not sound familiar to the citizen of today?  Madison continues:

“As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves.

“The latent causes of faction are thus sown in the nature of man; and we see them every where brought into different degrees of activity, according to the different circumstances of civil society…. So strong is this propensity of mankind, to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions, and to excite their most violent conflicts. But the most common and durable source of factions, has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a monied interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests, forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of government.

“The inference to which we are brought,” Madison concludes, “is that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.”[iii]

The essence of a free government,” John Adams later wrote, “consists in an effectual control of rivalries.”  Alexander Hamilton was more specific: “Give all the power to the many, they will oppress the few. Give all the power to the few, they will oppress the many.

 

Thomas Jefferson, being ever the more eloquent, put the concept in these words: “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”

Americans would do well to consider the carefully considered structure prepared by the Constitutional Convention in 1787, and the unique vision and history it has supported for more than two hundred years.  The record has not always been pretty, but how could we expect anything approaching perfection when we throw the human race, gathered together from extremely diverse roots, into the managed chaos of democratic process?  We are blessed with the oldest democratic republic on the planet, a brilliantly conceived structure that has channeled the creative genius of the world’s people into a dynamic force for capacity-building and prosperity.

The reasoning we have benefited from is available for us to examine through our access to the Federalist Papers.  This extraordinary document defines the concept of republican government and addresses the crucial questions regarding where government should control and where it should protect free expression and the independence of its citizens.  The Constitutional Convention made a studied effort to see the end in the beginning.  We now stand at another profound turning point that requires a similar visionary maturity from each of us.

Questions remain, of course.  I suggest that thoughtful citizens will do well to consider the requirements freedom makes of us in the in the way we handle our civil discourse and decision-making, and in the necessity for a stable social order.  Surely there can be no freedom for thought, for creativity, for economic advancement in the absence of a civil order that provides the space to engage freely and without fear.

I urge my fellow citizens to engage with one another honestly, respectfully and with dignity in our local communities, to reaffirm the principles and vision that have brought us this far.

Have we matured to the degree that we can live with our differences?  Do we have the capacity to approach our freedom of expression responsibly, to work with one another respectfully?  The crises-fueled tensions of the early 21st century leave us wondering.  Ultimately, however, our freedoms depend upon our ability to engage in meaningful problem-solving, and to accept our differences within the supporting constraints of commonly held principles.  Without this we could very well lose everything.

In the following chapters we will consider the choices we have made as a nation, and the personal choices we must make every day, in determining the nature and quality of freedom we wish to work for.  Because in the final analysis freedom is a personal attitude founded upon choice, responsibility, and clear-eyed engagement with reality.

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[i]  Thomas Jefferson to James Madison, November 18, 1788, in Thomas Jefferson, The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison, 1776-1826, 3 vols., ed. By James Morton Smith (New York: W.W. Norton, 1995), vol. 1, p.567.

[ii]  Robert A. Ferguson, ed., The Federalist (New York: Barnes & Noble Books, 2006), introduction, p. xvii.

[iii]  The Federalist, Number 10.