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 English settlement, American frontier life required little organization other than that prescribed by English traditions.  Life bore no resemblance to the complexities of today.  Due to tensions in England, however, the atmosphere in the American colonies became increasingly politicized.  Following the English Revolution in the seventeenth-century, a system of governance was established that was perceived as protecting political freedom, and which was, at the time, unique in the world.  It was a tenuous arrangement, however, a parliamentary system composed of a balance of power involving the monarchy, the aristocracy, and working people (“the commons”). Concerns about the importance and survivability of liberty grew over time on both sides of the Atlantic.  By the middle of the eighteenth-century feelings were intensifying dramatically.

Harvard historian Bernard Bailyn describes the heightened sensitivities among the colonists in his 1967 book, “The Ideological Origins of the American Revolution”:

“It had been at this critical juncture in the history of England and of liberty, when Englishmen had been forced to struggle with tyranny as they had not since the [Norman] conquest, that America had been settled.  The conjunction had not been accidental.  ‘It was this great struggle that peopled America, [John Adams wrote] …a love of universal liberty, and a hatred, a dread, a horror, of the infernal confederacy [of temporal and spiritual tyranny] projected, conducted, and accomplished the settlement of America.’ …In the colonies, ‘sought and settled as an asylum for liberty, civil and religious,’ [now quoting Amos Adams] virtue continued to be fortified by the simplicity of life and the lack of enervating luxury.

“This was not merely a parochial view.  Though the idea that America was a purer and freer England came largely from local, nonconformist readings of history, it was reinforced by powerful elements within Enlightenment thought.  European [intellectuals] continued to identify America, as John Locke had done, with something approximating a benign state of nature and to think of the colonies as special preserves of virtue and liberty…. No less a figure than Voltaire stated that America was the refinement of all that was good in England, writing in his Lettres philosophiques that [William] Penn and the Quakers had actually brought into existence ‘that golden age of which men talk so much and probably has never existed anywhere except in Pennsylvania.’”[i]

During the decades immediately prior to the American Revolution attention became riveted on the intensifying controversy in England over the fate of liberty and the English constitution. The colonists felt especially vulnerable to such threats, and by the 1760’s feelings were running hot on both sides of the Atlantic.  Resentment boiled over with the imposition of new laws and taxes in 1763.

Although sentiment was uniformly opposed to many of the actions of the British government during the revolutionary period in America, the colonies remained deeply divided over calls for rebellion.  Anger and antagonism 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.

As the prospect for revolution became evermore clear, concerns about the form a new government might take became paramount.  During the period prior to the Revolution each colony enacted its own constitution, a process that inspired a surge of competing ideas and arguments.  Despite acceptance of the revolutionary implications for a new order devoid of monarchy or hereditary nobility, it was impossible to avoid thinking in traditional terms.  The English constitution depended on the mediating role of a privileged order in parliament, the House of Lords.  This was unthinkable in America.

Bernard Bailyn outlines the controversies that emerged:

“The idea that constitutional liberty was bound up with the mediating political power of a privileged social order persisted into the turmoil of the Revolutionary crisis, but it came under new pressures and was challenged by the more advanced thinkers of the time. If America breaks free of English control, it was asked, what would become of the liberty-preserving balance? Monarchy as a social order would obviously be gone.  The commons, on the other hand, would most certainly and substantially be there.  And that great guarantor of liberty, the middle order?

“The idea that the newly independent American states, conceived in the spirit of equal rights and privileges and formed out of a remarkably equalitarian tradition, would deliberately create a privileged order was unthinkable…. No one seriously proposed to create a new social basis for the middle level of government.  But what would the result be? Republican states, of course.”[ii]

This answer was quite satisfactory for many.  But, it raised concerns.  As Professor Bailyn points out, “while the condition of life in America and the moral qualities of the people made the creation of republics peculiarly feasible, other circumstances made their survival problematic.  Republics had always been known to be delicate polities, peculiarly susceptible to inner convulsions and outer pressures. And the larger the state the greater the danger.”[iii]

Perceptions of the nature of republics and the concept of democracy came to the forefront in this debate.  The two terms were often used interchangeably, but they inspired differing responses.  Professor Bailyn, again: “…if ‘republic’ conjured up for many the positive features of the Commonwealth era and marked the triumph of virtue and reason, ‘democracy’ – a word that denoted the lowest order of society as well as the form of government in which the commons ruled – was generally associated with the threat of civil disorder and the early assumption of power by a dictator.”[iv]

These were among the intense issues and concerns that confronted the Founders following Independence.  The Constitutional Convention of 1787 struggled with concerns about the attitude of divisiveness in the colonies, past and present, and recognition that a future Republic would see changes that were impossible for them to imagine.

The leaders who gathered in Philadelphia that summer recognized that the natural strains of social, political, and economic differences could intensify, while involving any number of potential conflicts.  Majority factions had 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 values or define attitudes, or provide 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.

A New Kind of Nation

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,”[v]  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.”[vi]

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.”[vii]

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.”

Power and Liberty

The American Founders distinguished violent force from authentic power, believing that true power is grounded in the reciprocity and mutuality of compromise and cooperative endeavor – among citizens.  A democratic republic requires the uninhibited engagement of diverse forces and the free flow of ideas and creative endeavor.  This recognition is embedded in the Constitution.

Bernard Bailyn explains the roots of this perspective in his detailed documentation of the intense debates that took place during the decades leading up to 1776.  He writes:

“The theory of politics that emerges from the political literature of the pre-Revolutionary years rests on the belief that what lay behind every political scene, the ultimate explanation of every political controversy, was the disposition of power.  The acuteness of the colonists’ sense of this problem is, for the twentieth-century reader, one of the most striking things to be found in this eighteenth-century literature: it serves to link the Revolutionary generation to our own in the most intimate way….

“`Power’ to them meant the dominion of some men over others,” Bernard Bailyn continues, “the human control over human life: ultimately [by] force, compulsion. …It is referred to, discussed, dilated on at length and in similar terms by writers of all backgrounds and of all positions in the Anglo-American controversy….

“Not that power was in itself – in some metaphysical sense – evil. It was natural in its origins, and necessary. It had legitimate foundations ‘in compact and mutual consent’ – in those covenants among men by which, as a result of restrictions voluntarily accepted by all for the good of all, society emerges from a state of nature and creates government to serve as trustee and custodian of the mass of surrendered individual powers…. What turned power into a malignant force was not its own nature so much as the nature of man – his susceptibility to corruption and his lust for self-aggrandizement.”[viii]

The Constitutional Convention labored under this shared perspective in the summer of 1787. Yet, agreement on solutions, and applying them to the governing structure of the new nation did not come easily.

It must be noted that the French Revolution, which began in earnest two years later in 1789, produced a reign of terror that shocked observers on both sides of the Atlantic.  France soon succumbed to a totalitarian dictatorship.

Americans would do well today to think about the very different outcomes of the two revolutions, and the critical role played by the Founders in differentiating the American experience from the French cataclysm.  What made the difference?

To argue, as the French revolutionaries did, that power resides in the people as an impersonal mass is an assertion of abstract, utopian ideology.  Such an ideology is inflexible, insensitive to subjective experience, and oblivious of the very justice it claims to seek.  It cannot tolerate dissent.  It is a politics that is blind to personal circumstances and to human suffering.

We are a nation of citizens, and we contribute as individuals.  America has been graced with a governing structure that defends the individual, remains stable at times of crisis, and has allowed the most diverse nation in the world to grow and mature, ultimately rejecting slavery and supporting a steadily strengthening commitment to an inclusive and egalitarian society.

We know what the problems are today, and they were not caused by the Constitution.  Rather, it is the Constitution that provides the means for resolving them.

A Bulwark Against Disintegration

We are blessed with the oldest democratic republic on the planet, a brilliantly conceived structure that has channeled the creative genius of an immigrant people into a dynamic force for capacity-building and prosperity.  It has provided Americans with relative stability throughout a contentious past, even as the nation has gradually advanced toward an ever-more just and inclusive society.

The record has not always been pretty, but how could we expect anything approaching perfection when we throw the human race, gathered together from diverse roots, into the managed chaos of democratic process?  The human race has matured as America has matured.

We now stand at another profound turning point that requires a similar visionary maturity from each of us.  As I have said, the Constitution provides the structure; we must do the work.

Early in the twenty-first century the American people have splintered into fragments, divided by identity politics and inflexible ideologies.  Those citizens who defend the time-honored American tradition of pluralism and inclusive politics have found themselves sidelined by the noisy clamor of bitter hostility.  It has seemed to many that rational debate is no longer possible.

What is it, after all, that has made America great?

Many would argue that it is the Constitution that has made this country what it is.  Certainly, the Constitution provides a firm but supple backbone for a vibrant and creative people.  Others point to the strength of diversity we discussed in Chapter Three.  We are, above all, a nation of immigrants.  I would suggest that it is the American people, with all our varied experience and perspectives that make us what we are.

Our strengths and successes have come with qualities that include determination, diligence, ambition.  The Founders gave us a framework in which to apply these virtues and make them effective.

I must qualify this view by pointing out that Americans have become what we are because of the things that have influenced us: our multi-generational generosity of spirit, our form of government and civil society, the commitment to liberty and justice and the long, slow struggle toward inclusiveness.

In the coming pages we will also look at the ways we have lost our vision over the years, compromised our values, and enmeshed ourselves in materialism.

Let’s be clear: The United States of America could not become what it is without the vision and facilitating structure that is built into our Constitution.  Let us also be clear that the Constitution could never have served the role that it has without the commitment of citizens to the rational cooperation and personal responsibility that makes good governance possible.  Ours is a form of government that depends on a positive and constructive attitude among its’ citizens – despite our differences.

Questions remain, of course.  Thoughtful citizens will do well to consider the requirements freedom makes of us in the way we handle our civil discourse and decision-making.  A stable civil order must be built and sustained.  Surely there can be no freedom for thought, for creativity, for economic advancement – in the absence of a structure that provides the space to engage freely, without coercion or fear.  Neither can we seek our most fundamental goals without cooperation.

We must reaffirm the decency and cohesiveness that have made America great.  Have we matured sufficiently to live with our differences?  Do we have the capacity to collaborate with one another patiently, constructively.

The crises-fueled tensions of the early 21st century leave many of 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 our assumptions and the choices we have made as a people, and the personal choices we must make every day to determine the quality of life and freedom we wish for ourselves.  Because in the final analysis freedom is a personal attitude founded upon choice, responsibility, and honest engagement with reality.

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[i]  Bernard Bailyn, The Ideological Origins of the American Revolution, Belknap Press, Harvard (1967, 1992), pp.82-84.

[ii]  Ibid., pp.280-281.

[iii]  Ibid., p.281.

[iv]  Ibid., p.282.

[v]  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., James Morton Smith, ed., W.W. Norton (1995), vol. 1, p.567.

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

[vii]  The Federalist, Number 10.

[viii]   Bernard Bailyn, op.cit., pp.55-59.