Letters from an Ohio Farmer

The American Conversation

To My Fellow Citizens:

It is Constitution Day again. Two-hundred-and-twenty-five years ago, on this day in 1787, the delegates to the Constitutional Convention in Independence Hall in Philadelphia signed the document which, when ratified by the people, would become the "supreme Law of the Land." This act was the culminating episode in the historic drama begun in the same hall 11 years earlier when the Declaration of Independence, appealing to the "Laws of Nature and of Nature's God," proclaimed to the world the experiment in self-government being inaugurated by the newly sovereign American people.  

In 1776, the American Revolutionaries had pledged their lives, fortunes, and sacred honor to what Lincoln would later call America's "philosophical cause." At the heart of that cause was the central idea from which all other American political ideas radiate, the self-evident truth that "all men are created equal."  These most American words contain within themselves the idea of limited self-government—the idea of political freedom itself: All men are equally endowed with certain unalienable natural rights, governments are instituted with the limited purpose of securing these rights, and the just powers of government are derived from the consent of the governed.

In 1787-88, in the greatest constitutional conversation the world has yet seen, the American Framers would author and the American people would authorize a Constitution intended to establish forms through which Americans might more perfectly achieve the ends set forth in 1776. The Constitution would be an instrument by which the sovereign consent of the American people might govern not willfully, but reasonably, as the cool and deliberate sense of the country.  Governing ourselves through the forms of the Constitution we would make ourselves a constitutional people, demonstrating to ourselves and to the world, as it had never been done, the capacity of mankind for self-government. 

One-hundred years ago, in his successful 1912 presidential campaign under the banner of the "New Freedom," Woodrow Wilson repudiated this American constitutionalism and the American Constitution itself as outmoded ideas that needed to be replaced by continually new ideas to fit continually new times. He repudiated the Founders' appeals to the laws of nature and to natural rights in favor of the laws of evolution, the laws of History and Progress. More than any other figure, Wilson became responsible for bringing directly into American political life the idea of a "living constitution," a constitution to complement a government whose powers must continually "evolve" and expand to meet continually evolving and ever-expanding needs.  Wilson's New Freedom was the first wave of progressivism in what would become in decisive respects a progressive century.

The New Freedom was soon followed by Franklin Roosevelt's New Deal, in which FDR, bringing up to date the famous first 10 amendments to the Constitution, proclaimed a "second Bill of Rights"—an "economic bill of rights"—that continues to set the progressive agenda to this day. These alleged "rights"—which include, among other desirable things, a well-paying job, recreation, a decent home, a good education, and adequate medial care—have in the eyes of progressives assumed constitutional status under the living constitution. They achieved the status of "entitlements," not through any amendment procedure authorized by the Constitution, but through the mysterious amendment process of history with a capital H and progress with a capital P. To secure such vast entitlements, with which we are allegedly endowed by History and Progress, government must become vast—it must become the "welfare state," which has replaced the limited constitutional government constructed by the Founders to secure our natural rights and the civil rights following from them. 

A generation after Roosevelt's New Deal, Lyndon Johnson's Great Society aimed not only to complete the New Deal, but to expand it immeasurably. "The Great Society," said LBJ, "is a place where every child can find knowledge to enrich his mind and to enlarge his talents . . . where leisure is a welcome chance to build and reflect . . . where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for community. . . ." LBJ's Great Society aimed not only to relieve all material needs, but to provide spiritual fulfillment to all Americans. To secure these hitherto unimaginable new entitlements would, of course, require government without limit. Limited constitutional government responsive to the cool and deliberate sense of the citizenry was buried under multiplying labyrinthine bureaucracies, staffed by supposed experts.

These three great waves of progressivism, each one offering new transformations of the Founders' Constitution, justified by endlessly evolving History and Progress, constitute an evolutionary revolution that has in the course of a century made limited constitutional government in America almost invisible. "Hope and Change" was intended as the next progressive wave. Barack Obama's promise just before his election in 2008 was perfectly in keeping with the spirit of his progressive predecessors: "We are five days away," he vowed, "from fundamentally transforming the United States of America." He wasted no time proving he meant exactly what he said.

The determined progressivism of the new President and his party sparked a widespread movement among American citizens to restore limited constitutional government in America. The historic 2010 elections brought into office a House of Representatives that insisted in unprecedented ways on respect for the Constitution. The constitutional seriousness of this movement and this Congress was greeted by progressive politicians and intellectuals with arrogant contempt. The arrogance came from the essential progressive article of faith—the belief that, above all, beliefs must go unquestioned—that history with a capital H and progress with a capital P are irrevocable, that "you can't turn back the clock."

But this could not be true, if the moral and political axioms of the American Revolution and Founding are true. Self-government and political freedom are not a wind-up clock. Repealing the President's disastrous progressive Patient Protection and Affordable Care Act (Obamacare) would be one effective way of proving this point, among innumerable other possibilities that present themselves to citizens and their representatives who are not frightened by the bogeyman of "History" and "Progress," and are determined and happy to think for themselves about what might be best for the country.  And so, a constitutional conversation began.

This is the kind of conversation the American people characteristically have at pivotal moments in our history—about the foundations, purposes, scope, and form of our government, about the rights and duties of citizens, and the responsibilities of their representatives. This series of essays modestly hopes to contribute to this urgently necessary American conversation.

Ohio Farmer

E Pluribus Unum

To My Fellow Citizens:

In August 1790, Moses Seixas, Warden of the Hebrew Congregation of Newport, Rhode Island, wrote a letter to President George Washington, welcoming him to the city. "Deprived as we heretofore have been of the invaluable rights of free Citizens," Seixas wrote, "we now with a deep sense of gratitude to the Almighty disposer of all events behold a Government, erected by the Majesty of the People—a Government, which to bigotry gives no sanction, to persecution no assistance—but generously affording to all Liberty of conscience, and immunities of Citizenship:—deeming every one, of whatever Nation, tongue, or language equal parts of the great governmental Machine …." Seixas continued, expressing thanks for "all these Blessings of civil and religious liberty which we enjoy under an equal benign administration."

President Washington replied three days later, appreciating the sentiments and explaining something about the principles that give rise to the blessings of civil and religious liberty: "It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States … requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support."

The idea of America's "enlarged and liberal policy" is that all "possess alike liberty of conscience and immunities of citizenship." The government that extends the invaluable rights of free citizens to those heretofore deprived of them does so because it believes it can follow no other course if it wants to be a just, legitimate government. Certain natural rights are unalienable according to the Declaration of Independence, and governments are instituted among men to secure these individual rights. The indifference to ethnic and religious distinctions that had caused wars around the world for centuries is a byproduct of this understanding of what government must and must not do.

Our first president, then, was addressing what we would today call the problem of "diversity" in a way that made it sound like it wasn't really much of a problem. Or, as the 40th president liked to say, it was a problem whose solution was not necessarily easy, but was simple: As long as people were good citizens, the government would recognize and protect their rights, strictly refusing to calibrate that duty by taking into account different religious affiliations or national origins.

What's at stake, however, is not just the relationship between citizens and state, but the nature of the relationships among citizens. Washington concludes his letter to the Hebrew congregation by alluding to the Old Testament book of Micah: "May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants—while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid." A diverse nation can work if its members strive conscientiously to be worthy of one another's good will, and to be generous in extending that good will to all who have earned it.

We usually understand "E Pluribus Unum"—From Many, One—as a call to make federalism work. The colonies that formed the 13 original states, plus other states subsequently admitted to the Union, were supposed to remain distinct political entities while composing a viable whole. From the beginning, however, there was the parallel awareness of the need for the people to form one nation, even as the states formed one country. The first design for the Seal of the United States included, in addition to "E Pluribus Unum" and the shields of the 13 colonies, six symbols for "the Countries from which these States have been peopled": England, Scotland, Ireland, France, Holland, and Germany. Virginians and Georgians would be Americans but so, too, would Englishmen and Germans.

The need to accord adequate scope and respect to "oneness" and "manyness," while at the same time reconciling them, is not just an American problem. It is a fundamental political problem, always and everywhere, since all encompassing human assemblages must find a workable balance between the centrifugal force of Pluribus and the centripetal one of Unum. The circumstances under which America has addressed this problem have been uniquely challenging, however. The population of the United States in 1790, when Seixas and Washington exchanged their letters, was 3,894,000, less than half the number of New York City's inhabitants today and about one 80th of the present U.S. population.

Moreover, we are not only far more diverse in 2012 than America was in 1790 as a matter of fact, but as a matter of principle. We use "diversity," that is, as a prescriptive as well as a descriptive term. Those for whom diversity is a cause insist justice demands new and greater efforts to honor and accommodate our plurality. These demands include many particulars, such as: public signs and official documents written in Spanish as well as English; successful lawsuits against displaying Christmas trees or the Ten Commandments on public property; same-sex marriage; and affirmative action programs that are supposed to assist not only the members of minority groups who are admitted to colleges or hired by organizations, but the entire student body or workforce that benefits from a widened range of experiences and perspectives.

Turning diversity into an ideology does not make the many/one problem disappear, however. In fact, as the list of particularities America is asked to encompass grows indefinitely, the unifying ideas and sentiments become all the more important. Thoughtful advocates of diversity increasingly recognize that any Pluribus worth celebrating is made possible only by the great American Unum—the central idea from which Abraham Lincoln said all his political sentiments radiated: the self evident truth that all men are created equal. Under today's circumstances, it has been thought most fitting and helpful in this series of letters to emphasize this American Unum and to articulate its meaning and profound implications. We trust, however, that a fair-minded review will find the series a not unworthy monument to the mystic chords of memory that make an enduring and beautiful harmony of the American Unum and Pluribus.

Ohio Farmer

Revolutions and Freedom

To My Fellow Citizens:

When you go to Mount Vernon, the guides in the main house proudly point out an amazing piece of history in the front hallway. There, so close you could touch it if it weren't behind glass, is the key to the Bastille prison – a gift to George Washington from the Marquis de Lafayette, who had served with Washington in the Revolutionary War and then himself played a role in the French Revolution. The key recalls Bastille Day, July 14, 1789, when the people of Paris stormed King Louis's hated prison. It was supposed to symbolize the unlocking of liberty by these two revolutions. 

But the French Revolution took a very different turn from the American. In France, revolution opened Pandora's box, leading to a bloody Terror that ended with the rise of Napoleon, a generalissimo who eventually crowned himself emperor. In this the French Revolution was not alone: the Soviet Revolution gave us Lenin, Stalin, and the gulags. China had Mao's Cultural Revolution, with its cult of personality and millions dead or imprisoned. The Iranian Revolution ended with Ayatollah Khomeini and radical Islam rising to power in the Middle East.

Now, with so much revolutionary sentiment sweeping the world in places like Egypt, it's worth asking ourselves the question: Why did the American Revolution produce a regime of constitutional liberty when so many other revolutions have brought tyranny or disorder – or both? 

I hope it will not seem patriotic boastfulness to say that the American Revolution was an exception because the Americans had the right principles and habits. We believed that all human beings are "endowed by their Creator with certain unalienable rights" and that government's fundamental job is to protect those rights – not to bring about social utopia or economic paradise or the rule of God on earth. The French, Russian, Chinese, and Iranian revolutions were different. They did not just want to recognize the rights of human beings; they wanted to remake society completely and even transform human nature itself. Everyone in France had to become "citizen": no other title or attachment could matter anymore. Likewise, everyone in Russia was to be made into a "comrade," a  "new Soviet man," and millions and millions in China had to be "re-educated." In Iran, the people had to become believers in the veliyat-e-faqih – the rule of God on earth.

These revolutions had no time or place for anything that stood in their way. Life, liberty, or property? Property had to be confiscated in the name of revolutionary fraternity or a classless society. Liberty had to be curtailed because no one could be free to dissent from the "general will" or the vanguard of the people. The sacred right to life? "Enemies of the people" got show trials or, more often, summary execution. Because the revolutions had limitless purposes, they had in principle no stopping point. Everything had to be overthrown and transformed, and all means were justified.

The American Revolution was different. It sought to bring a "new order of the ages" (Novus Ordo Seclorum as our dollar bill says in the Latin taken from the Great Seal of the United States), but that order was built on principles in the Declaration of Independence that inherently limited the scope of revolution. Americans knew that political truth comes from the "laws of nature and of nature's God," which lends a solemn lawfulness to the cause that does not permit casual violence or unjust actions in the name of "revolution."

We also understood that government gets its "just power" from "the consent of the governed," which means that government is the creation of the people, not vice-versa, and it must have their agreement to rule them. This excludes the use of violence by revolutionary "leaders" to force others to comply with their pronouncements. Our leaders like Washington did not try it; he handed back his military power to Congress after the Revolutionary War in 1783. Nor would the American people or its army have tolerated any other course of action, even from Washington. As James Madison said:

I have always believed that if General Washington had yielded to a usurping ambition, he would have found an insuperable obstacle in the incorruptibility of a sufficient portion of those under his command, and that the exalted praise due to him & them, was derived not from a forbearance to effect a revolution within their power, but from a love of liberty and of country which there was abundant reason to believe, no facility of success could have seduced.

And the Americans realized that protecting "certain unalienable rights" restricts the size and intrusion of government once it is established, and leaves space for personal freedoms like speech, press, and religion.  It is no accident that the state constitutions created in the midst of the Revolution were the products of deep deliberation and tried carefully to protect individual rights, embrace the rule of law, and expect real republican virtue from the people.

America was also different because we had been practicing the principles of our revolution long before we famously proclaimed them on July 4, 1776. As James Madison said in Federalist 39, republican government was part of the "genius" of the American people even before 1776. We had been governing ourselves locally from the time of the first Puritans. By the time the shooting started in 1775, we were used to the rule of law and to the rights and responsibilities of freedom.

Can we say the same about countries today that are experiencing revolution? Take Egypt, for example. In the early 20^th century, Egyptian elites tried to bring about democracy, but it failed. Then Egypt flirted with Arab nationalism, which is still a force. And for a long time one of the centers of opposition has been the Muslim Brotherhood, which has never really given up the idea of adopting sharia law.

Admittedly, in the past year Egypt has acquired some of the elements of democracy like vibrant newspapers, presidential debates, and multi-party elections. Such limited habits of democracy, however, are not enough without underlying principles of freedom.

A free society is within the capacity of any country, including countries like Egypt. But are today's revolutionaries more like their French or American predecessors? Do they see the glory of revolution in storming the Bastille and tearing down the old oppressor? Or in creating a regime of self-government that respects all of the individual rights of citizens, including economic freedom, freedom of speech and, especially, religious freedom? 

If history is any guide, we should be cautious: revolutions that give birth to free societies are exceedingly rare. The French Revolution eventually did, but only after many fits and starts. France is, after all, on its Fifth Republic. That's because a freedom revolution not only needs statesmen like Washington rather than Napoleon, it must have a revolutionary spirit animated by the right principles and moderated by the right habits. We Americans had them, I am grateful to say.

But if we are going to keep the Revolution, we have to conserve those principles and habits. Every generation must learn them anew. With them, liberty thrives. Without them, liberty dies.

Ohio Farmer

 

Franklin's Fourth

To My Fellow Citizens:

Benjamin Franklin snatched lightning from the sky and scepters from the hands of tyrants, a contemporary once said of him.  The lightning snatching refers to Franklin's famous kite flying in a thunderstorm to prove the connection between electricity and lightning.  As for snatching scepters from tyrants, this might refer to a number of Franklin's activities.  The one most fitting to recall on July 4 is Franklin's connection to the Declaration of Independence.

The principal author of the Declaration, Thomas Jefferson, sent Franklin the draft, asking for his opinion.  Franklin made several editorial suggestions, one of great importance.  Jefferson had written "We hold these truths to be sacred and inviolable; that all men are created equal…"  Franklin suggested instead, "We hold these truths to be self-evident; that all men are created equal…"

Some have seen Franklin's suggested change as an appeal to the scientific language of the day at the expense of the more religious sentiment present in the word "sacred."  Yet Franklin did not object to Jefferson's mention of Providence; nor did he object to the phrase "the laws of nature and of nature's God."  Neither was Franklin one to appeal to authority.  What was his intention, then, in suggesting the phrase "self-evident"?   

To understand this, we must recall the consequence of human equality.  If human beings are equal, it means that no one has a right to rule another.  Neither nature nor God has given to one individual, one family, one race, or one class, the right to rule others without their consent.  To be ruled justly, each individual must consent to be ruled.  Equality is the foundation of self-government, free government.

To call human equality sacred and inviolable establishes how important it is, but it does not tell us how we know it.  But if men are to enjoy free government, to never be ruled unless they consent to it, they must know that they are equal.  This must be the most unquestioned political knowledge a citizen possesses.  It must be an idea that carries its own evidence with it.  It must, in brief, be self-evident.  Franklin suggested inserting the phrase "self-evident" in the Declaration to make the foundation of self-government depend on nothing else but the understanding of self-governing men.

It may seem to us, indeed, that human equality is self-evident, heirs as we are to the revolutionary accomplishments of men like Franklin.  But is it really self-evident?  Reflect for a moment on the wonderful irony at the heart of the Declaration:  probably the two most intelligent and most variously and spectacularly talented of our statesmen joined in the founding of our nation by declaring themselves self-evidently equal to all others.  Do not the evident inequalities of men like Franklin and Jefferson call into question the supposed self-evident equality of men?

In fact, they do not.  What is self-evident when we consider Franklin is not that he was equal in intelligence or talents to other men.  This is most self-evidently not the case.  What is self-evident, however, is that no matter how superior Franklin was to others, he was still a human being.  Although surpassingly intelligent, he was not all-knowing.  Although exceedingly industrious, he was not all-powerful.  He did not possess the attributes of a deity.  He was human and self-evidently heir to human limitations and frailties.  Due to his evident abilities, Franklin led every enterprise he was associated with.  Due to his self-evident humanity, he did so only with the consent of those he led.

Franklin's insertion of the term "self-evident" into the Declaration was a critical improvement of the text.  Considering its meaning will always bring us to a better understanding of equality and self-government.  In offering this improvement, Franklin was continuing—when he was 70—his life-long activity as an improver, as a man who sought better ways to do things, from cleaning streets to testing the forces of nature.  This was in keeping with the argument of the Declaration.  If men were equal, then they were not to be judged by their family, religion, race, or class but by what they did.  Franklin discouraged would-be immigrants to the United States who had only their birth or family name to recommend them.  In America, he wrote, "people do not enquire of a stranger, what is he? but what can he do?"

Franklin's life, shaped by the knowledge that a man should be judged above all by what he does, embodied the principles of the Declaration before it was written.  This is why he is often called the first American.  By embodying these principles, Franklin was also manifesting most tangibly his equality with other men.  When he arrived in Philadelphia, Franklin was a nearly penniless 17-year-old.  He had only his talents and industry to rely on.  In this, he was like all men.  Nor could he predict, because it was not in his power, what would result from applying his talents industriously.  In this, he was also like all men.  He could not be assured of achievement, he could only work so as to deserve it. 

More than his editing of the text, Franklin's life was his greatest contribution to the Declaration.  He is the model of an American.  His life not only embodied the Declaration, it vindicated its principles and the hopes of those who drafted it and of those who then and ever after were inspired by it.  Franklin first and above all others showed the good that a free man, a self-governing man, could do.  And so in its own way does the life of any citizen who following Franklin strives to do the best no matter what he has.  Such a life may not snatch lightning from the skies but it will continue to snatch scepters from tyrants.

Happy Fourth,

Ohio Farmer

 

A Statesman in Congress

To the Members of the 112^th Congress:

This Friday marks the 160th anniversary of the death of Henry Clay (June 29, 1852). With only a few years excepted, Clay served in the House of Representatives and the Senate from 1803 until his death almost 50 years later. When he died, he was the most famous American of his day and received many, many eulogies. One of them came from a little-known, former one-term Congressman from Illinois named Abraham Lincoln, who eulogized Clay as "my beau ideal of a statesman."

In calling Clay a "statesman," Lincoln chose his words carefully, and he used a term we don't hear much anymore. But it's one we must recapture if we are going to understand the kind of people we need in public office to revitalize the American experiment in constitutional self-government.

To recapture the idea of the statesman, we must, among other things, recall how to distinguish it from the idea of the "leader" bequeathed to us by the Progressive Movement over a century ago. "Leader" is an old word with a respectable heritage—Thomas Jefferson referred to George Washington, for example, as "our great leader."  But the Progressives, beginning with Woodrow Wilson, poured new wine into this old bottle, and our public discourse has been drinking this Progressive vintage ever since.

Progressives who talk about "leadership" also talk about "vision."  They mean that a leader somehow must have a vision, a vision of the future into which he will lead his followers. A progressive leader moves people away from where they are toward some new goal divined by the leader—actually, toward goals that must constantly be renewed as we make endless "progress" into an always receding future. To lead the country into the progressive future requires leading it away from the supposedly outmoded goals, principles, and institutions of the American Founding.

The statesmanship of Clay (and Lincoln after him) was guided by the goals set out in the Declaration of Independence and the Constitution: to protect the "unalienable" rights of every individual to "life, liberty, and pursuit of happiness"; and "to establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."  A statesmanlike pursuit of these goals requires "vision," too, but vision of a sort very different from the progressive variety.

Statesmanlike vision is part of the virtue that Aristotle called prudence. Prudence does not mean "caution"; it means knowing what the right goals are and seeing how to move toward them in the particular circumstances that you face. The prudent statesman has great political vision, like a great quarterback who can see the whole field and make adjustments at the line of scrimmage. Having that kind of larger outlook can be hard in Congress, where there are so many particular interests and passions always trying to narrow your view. But, as Lincoln said, Henry Clay had that broader statesmanlike perspective: "Whatever Mr. Clay did, he did for the whole country. In the construction of his measures he ever carefully surveyed every part of the field, and duly weighed every conflicting interest."

The right kind of compromise is often part of the statesman's prudence. On at least three occasions (the last in 1850), Henry Clay cobbled together a deal in Congress that held a shaky country together. For this he earned the title "The Great Compromiser"—not because he gave in on his fundamental principles but because his compromises preserved the Union and kept the spark of liberty alive. His deals had their critics, and some of their criticism is not off the mark. But Clay was willing to make imperfect compromises because he knew that in politics consequences matter. It's not enough simply to have good intentions: the right action is also the one that has the best possible results. The statesman's compromise is one that, without violating the larger principles at stake, gets as much good as possible out of imperfect circumstances.

To achieve what Clay achieved in his long career required qualities that set him apart from his sometimes more seemingly successful political competitors. As Lincoln said:

Even those of both political parties who have been preferred to him for the highest office, have run far briefer courses than he, and left him, still shining high in the heavens of the political world. Jackson, Van Buren, Harrison, Polk, and Taylor, all rose after, and set long before him. The spell—the long enduring spell—with which the souls of men were bound to him, is a miracle. Who can compass it? It is probably true he owed his pre-eminence to no one quality, but to a fortunate combination of several. He was surpassingly eloquent; but many eloquent men fail utterly; and they are not, as a class, generally successful. His judgment was excellent; but many men of good judgment, live and die unnoticed. His will was indomitable; but this quality often secures to its owner nothing better than a character for useless obstinacy. These then were Mr. Clay's leading qualities. No one of them is very uncommon; but all taken together are rarely combined in a single individual; and this is probably the reason why such men as Henry Clay are so rare in the world.

Statesmen like Henry Clay are rare, but sometimes our Republic needs them. They don't try to lead us to a new political ideal; they help us see how to return to the principles of our Founding and Constitution. They know that the people are supposed to lead themselves by adhering to the Constitution they set up, not by following a leader as he envisions the next goal revealed to him by the always progressing "living constitution." In helping to keep our Founding principles alive in the minds of the American people, they render a noble and glorious service both to our country and to all mankind.

They come to "belong to the ages," as someone said less than a generation later of the little-known Congressman who once eulogized Henry Clay.

Ohio Farmer

 

Our Constitution is Color-Blind

To My Fellow Citizens:

A prominent theme of these letters is that—to inherit and pass on to the next generation the legacy of freedom bequeathed to us—Americans must understand and take to heart the idea of political freedom that has been at stake in all the great episodes of American history. Today is a fitting time to reflect on one of those episodes.

On June 7, 1892, Homer Plessy boarded a train in New Orleans bound for Covington, Louisiana. When the conductor saw his ticket, he demanded that he move. When Plessy wouldn’t, he was arrested, tried, convicted, and fined $25. His offense? Violating Louisiana's "Separate Car Act" by sitting in a "whites only" railroad car. Plessy and his supporters appealed the case all the way to the U.S. Supreme Court, claiming that Louisiana's "Jim Crow" law violated the 14th Amendment to the Constitution, which prohibits a state from denying "equal protection of the laws" to any person within its jurisdiction.  Congress had sent the 14th Amendment to the states for ratification on June 13, 1866,146 years ago today.

Unfortunately, the Supreme Court didn't agree with Mr. Plessy, and voted by a 7-1 margin that racially segregated facilities were permissible under the Constitution, as long as the facilities were "separate but equal." It was one of the worst decisions the Court ever made. But it did raise a question that Americans – and the Supreme Court – are still asking: What does it mean to be equal under the law?

The meaning of equality had been the central question for Americans ever since our Founders first declared in 1776 the self-evident truth that "all men are created equal." In previous letters, I have noted that the Founders understood equality to mean that everyone has the same natural rights – that is, everyone has the same God-given rights to life, liberty, and property. We should all be free from violence to our life and health, be free to run our own lives, and be free to enjoy the fruits of our labor. Obviously, slavery violated all of those principles and had to be abolished if America was fully to live up to them. In 1865, as a result of the Union victory in the Civil War, it was abolished by the 13th Amendment. But the submission of the 14th Amendment to the states in 1866 raised a different question: once slavery is abolished, how does our basic natural equality translate into law and the Constitution? What does it mean to have "equal protection of the laws," as the 14th Amendment says?

It's not just a historical question. The meaning of constitutional equality is being debated again by the current Supreme Court, which is going to decide soon whether state universities can consider race in the application process, especially by giving a "plus" to certain people because of their race. Does that violate "equal protection of the laws"? It does, and to understand why, we need look no further than the dissent of the one Justice who voted in favor of Mr. Plessy so many years ago.

In his great dissent, Justice John Marshall Harlan argued that "separate but equal" could never be justified under the Constitution. For one thing, "the statute… interferes with the personal freedom of citizens…. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each."

In response, however, Louisiana claimed that states can interfere with personal freedom if necessary for public safety. For example, in order to keep the roads safe, speed limits restrict how fast we can drive. Or more to the point, the law prevents some people from driving (for example, 14 year olds) whether or not they are actually qualified. No one says that those laws are unreasonable, unequal, or unconstitutional. Louisiana claimed the same for its segregation law: it was designed to maintain public order by keeping the races separate. Justice Harlan pointed out, however, that "every one knows that … [t]he thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary." 

But Harlan knew that as a matter of constitutional principle, it was not enough to lay bare Louisiana's racist motives. He had to show that even if the legislature had good intentions, it simply did not have the power to make a law that segregates by race in this way. "In respect of civil rights, common to all citizens," Harlan wrote, "the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights." Why not? Because, he said,

in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

We must understand Harlan’s words. "Our Constitution is color-blind" because, speaking generally, the law – government – does not even have the power to see a person's race; for the purposes of government (the main purpose being to secure the rights of the governed), race is irrelevant. As the Declaration of Independence says, "Governments are instituted among men" to secure individuals' natural rights, which are part of every person as a human being and have nothing to do with race. In order to protect people's rights, therefore, government does not need the power to "know" anyone's race, as Harlan says. So it does not have such power.

So when the 14th Amendment declares that every person should have "equal protection of the laws," it means that the law must treat everyone the same without regard to race. The only exceptions would be the commonsensical ones, when it is necessary for government to consider race in order to protect citizens' natural rights, as, for example, when police departments must hire an undercover officer of a specific race to infiltrate an ethnic gang. But these are practical exceptions that do not apply to Homer Plessy's case in 1896 or to college admissions today.

It's been 146 years since Congress sent the 14th Amendment to the states for ratification. It was designed to complete the work of the Founders and translate the principle of equality of natural rights into the fact of "equal protection of the laws." Since 1866, that full equality has become more and more part of the character of the American people themselves. Now it is up to the Supreme Court – more importantly, up to us – to live up to our color-blind Constitution, rid the law of race, and finally, fully vindicate the courage of Homer Plessy and the wisdom of John Marshall Harlan.

Ohio Farmer

 

The Reason of the Public

To My Fellow Citizens:

Every year, a lot of people think up all kinds of new constitutional amendments. Politicians and intellectuals propose them often enough: one professor, for example, recently suggested 23 new ones. It’s been 20 years, however, since America ratified the last amendment on May 7, 1992.  Is that a good thing? It seems worth reflecting on that question in our continuing effort to equip ourselves to inherit and pass on (or even enhance?) the great American heritage of political freedom.

Thomas Jefferson hoped that the entire Constitution would be changed or re-ratified every 20 years. We should not, he wrote, look upon a constitution with "sanctimonious reverence." It is not "like the arc of the covenant, too sacred to be touched"; it is simply a means to achieve the great ends of a free society laid out in the Declaration of Independence. "The earth belongs always to the living generation," Jefferson argued, and "laws and institutions must go hand in hand with the progress of the human mind."

This is a powerful argument, but it did not convince Jefferson's friend and life-long political ally, James Madison. Madison shared Jefferson's view that while the Constitution is the how of American government, the Declaration is the why. The Constitution is important as the means by which we Americans achieve the moral and political purposes declared in 1776.

But unlike Jefferson, Madison had been at the Convention in 1787, and he knew that the "miracle at Philadelphia" was not only that the country conceived a constitution there. It was that our nation as a whole began to acquire constitutionalism – the idea and habit of steadfast adherence to the rule of law and to a written document that guides us as a people.

Madison knew that the people must have a constitutional disposition if they were to keep their authority from degenerating into mere willfulness. The Constitution is supposed to limit the federal government; but it is also supposed to show the people their limits – that their government cannot do anything they want, but only what the Constitution permits. It cultivates good habits of political moderation and lawfulness by reminding the people that there is something above them and their will – justice. It says to them that if they want to keep their authority, they must always exercise their power according to "the laws of nature and of nature's God," as the Declaration says. To be a Declarational people, Madison knew, Americans must always remain a constitutional people.

As a constitutional people, we must be careful about changing the Constitution because while the people make the Constitution, it also makes the people. As Madison said in Federalist 49, frequent constitutional change "would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability." Without such sober reverence, the "PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public that ought to control and regulate the government." 

This means that every time someone proposes to change the Constitution, he is really proposing to change the character of the American people. Sometimes the proposed change is an improvement that makes the people more like their true selves – that is, it makes the people live more fully according to our fundamental principles. The 14th Amendment, for example, has molded the self-evident truth that "all men are created equal" into a political habit; we are now a people who understand that no government – state or federal – can deny people "equal protection of the laws." The amendment has made us more republican, in the proper sense of the word.

But constitutional change could work the other way. Consider the increasingly popular idea of amending the Constitution to replace the Electoral College with a direct popular vote for president. This would also affect the character of the people, and not in a good way. The will of the numerical majority would become the constitutional rule for filling our highest office, strengthening in the public mind the false idea that a simple majority is always the right way to do things. In addition, all citizens would be lumped together into one undifferentiated mass, which denies that there are any constitutionally respectable differences of interest or attachment between, for example, people in Ohio and people in California. But we really do have such legitimate interests and attachments, as we can see in our federal system. This change would cause Americans to become more inclined to regard all particular interests and differences with greater suspicion, and to have a weaker attachment to our states in favor, naturally, of a greater attachment to the federal government.

Not surprisingly, abolishing the Electoral College is usually favored by those who distrust differences between human beings and who want a more energetic federal government devoted to reducing those differences. From Madison's point of view, these people share the vice of the "[t]heoretic politicians, who… have erroneously supposed that by reducing mankind to a perfect equality in their political rights… they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions" (Federalist 10).

Being wary of tampering with the Constitution does not mean that we should confuse it with the Ark of the Covenant. Jefferson was right: we can touch it, and we won't die. We've already done that 27 times. We should always consider the Constitution in light of its higher ends – above all, securing every person's natural rights to life, liberty, and property, and governing ourselves as free men and women. But Madison was also right: if we are going to achieve the purposes of the Declaration, we must treat the Constitution with real reverence, and think hard about how any changes to it would change the very character of our country.

The 27th Amendment was ratified only 20 years ago. But it was originally proposed way back in 1789 as part of the original Bill of Rights. It took 203 years to be ratified – a long time, to be sure. But that probably would not have bothered the man who first proposed it, James Madison.

Ohio Farmer

 

Equality and Race

To My Fellow Citizens:

Recent controversy over the killing of a black teenager in Florida reminds us that America’s racial dilemmas did not end with the election of our first black president; they evolved. The episode is the latest intersection of equality, the general principle of democratic politics everywhere, and race, the particular issue that has been the greatest political challenge throughout America’s history.

Abraham Lincoln, who thought more profoundly than any figure in our history about the intertwined questions of equality and race, took the questions up in 1857 in a speech criticizing the Supreme Court’s Dred Scott decision. The Court, and politicians like Lincoln’s great opponent Senator Stephen Douglas, who defended the Court’s decision, argued that when the American revolutionaries famously wrote that “all men are created equal,” they did not mean to include black men (this is a view still widely insisted on by many academics and intellectuals who write on these subjects).  Lincoln denied this.  As he said:

Chief Justice Taney … and [Senator] Douglas argue that the authors of [the Declaration] did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another.

It is worth quoting Lincoln at length explaining what the authors of the Declaration of Independence did mean:

I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness".… They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.

Establishing a true understanding of equal human rights in the public mind was—and is—a mountainous challenge in itself. Giving the best possible effect to that truth in the “circumstances” in which the country finds itself at any given time can be an even greater challenge. Lincoln wrote that the Founders intended the enforcement of Americans’ equal natural rights to “follow as fast as circumstances should permit.” As he said repeatedly throughout the 1850s, this meant, among other things, that the Founders intended to put slavery in the “course of ultimate extinction.”

In Lincoln’s time, he and Stephen Douglas were politicians competing at the highest levels of American politics for the same mid-19th century voters, who were overwhelmingly white and overwhelmingly opposed to sharing their political and social rights with blacks. To gain advantage with such an electorate, Douglas—in Lincoln’s words— sought to exploit the “natural disgust in the minds of nearly all white people, to the idea of an indiscriminate amalgamation of the white and black races.” He did this by saying of those who, like Lincoln, affirmed that the declaration’s “all men are created equal” meant all men, that they “do so only because they want to vote, and eat, and sleep, and marry with negroes!”

Appealing to the same voters, Lincoln protested “against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.” The only “preventive”—if there was any preventive—for amalgamation of the white and black races, he said, was the “separation of the races.” The only way—if there was any way—to effect the separation of the races was “colonization,” transporting “the African to his native clime” or to some other foreign parts that he would consent to go to.

With such appeals, Lincoln got himself elected president.  Secession and Civil War followed. The circumstances of the war made it possible for Lincoln to promote the immediate abolition of slavery; this led, quickly, to the constitutional guarantee of black citizenship and voting rights and, slowly, to the federal enforcement of those guarantees. After a century of the uncertain and painful unfolding of circumstances, in1964 Congress outlawed the local ordinances and private practices that required blacks to eat in separate sections of restaurants and sleep in separate sections of hotels. Three years later the Supreme Court ruled unanimously that legal restrictions on marriage, if based on race, were unconstitutional.

Nothing changes circumstances like war. By the time the Civil War ended it became clear that all the options Americans had been exploring were dead ends. We were not going (though the rebelling states tried) to split into two countries, one free and one slave. We were not going to exist in perpetuity as one country in which we agreed to disagree about slavery. A house divided against itself, half-slave and half-free, could not stand, as Lincoln had predicted. And we were not going to end slavery only to send the descendants of Africans who had been brought here against their will throughout the 17th and 18th centuries back to Africa or on to some other part of the world. The only option left was the one that most white Americans before the Civil War considered morally intolerable and practically impossible: find a way to make American democracy work in a nation where different ethnic and racial groups formed one people. Some thoughts on the course of that endeavor will be the subject of a future letter.

Ohio Farmer

 

To Secure These Rights

To My Fellow Citizens:

Rights are at the heart of American politics. Anyone wanting to understand our experiment in self government must grasp what we meant when we began that experiment by proclaiming, as self-evident truths, "that all men … are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," and that it is "to secure these rights" that "Governments are instituted among Men."  In our last letter, we reflected that the phrase "among these" is evidence that the authors of the Declaration of Independence, when listing three rights any legitimate government exists to secure, did not want to rule out the possibility of other rights deserving protection—such as the right to property.

We see the same concern reflected in the Constitution's Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Both our great founding documents, then, the Declaration of Independence and the Constitution, sought to protect against the danger that future governments might construe too narrowly the rights that defined their duties and justified their powers. Both documents explicitly reject the idea that the natural rights they enumerate are necessarily the only unalienable rights that government must protect. What they did not do and could not do is provide an exhaustive list of such rights.

Enter Franklin Roosevelt and the New Deal. FDR's New Deal presented itself as a necessary updating of the American Founding's 18th century principles to make them applicable to urgent 20th century realities.  "This Republic had its beginning," said Roosevelt in his 1944 State of the Union address, "and grew to its present strength, under the protection of certain inalienable political rights...." But,

As our nation has grown in size and stature... – as our industrial economy expanded – these political rights proved inadequate....

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all....

History had made "self-evident" to FDR and his progressive forebears that the self-evident truths of the American Founding were inadequate as a foundation for a just political order in our time. "Social justice," as Roosevelt had written in 1938, "is essentially a conception of this century. It was not visualized by the men who founded the nation." A re-founding was needed, and that is what the New Deal offered. Anyone resisting the new vision and wishing to return to the principles of the original Founding would be a reactionary.

Roosevelt's second Bill of Rights included rights to adequate employment, business opportunities, housing, medical care, education, and protection against old age, sickness, and unemployment. Those who find it hard to imagine a guarantee of economic security that is not included in this list are not thinking like New Dealers. A year before the 1944 State of the Union Address the National Resources Planning Board, an agency created to map out a domestic policy agenda for implementation after victory in World War II, had submitted a report to Congress with its own bill of social welfare rights. It included "The right to education, for work, for citizenship, and for personal growth and happiness," and "The right to rest, recreation, and adventure, the opportunity to enjoy life and take part in advancing civilization."

Replacing the Founders' understanding of unchanging natural rights with an ever-evolving wish-list under the name of rights is central to the modern liberal enterprise and is the key to understanding the boundlessness of that enterprise. The Obama administration recently demonstrated one of the problems with this approach: If any social policy goal may be proclaimed a right, any right may be regarded as just another policy goal. The Department of Health and Human Services navigated this two-way street by announcing that the Affordable Care Act required non-profit employers to offer contraceptive coverage to their employees, even if they have never done so in the past due to religious convictions. The rationale, according to HHS Secretary Kathleen Sebelius, was to strike "the appropriate balance between respecting religious freedom and increasing access to important preventive services." The implication is clear: The government is going to balance two commensurate things, religious freedom and the provision of important preventive services. For the latter to become a right, just like the former, the former needs to be whittled down to fit a domestic agenda, just like the latter.

The biggest problem with the HHS contraception rule is not that HHS made the wrong decision, but that HHS was wrong to make a decision. A properly constituted republican government protects, rather than occupying and managing, the space wherein citizens follow their consciences while securing the employment and insurance arrangements they desire. Such restraint comes naturally to a government that exists to secure a finite number of unchanging natural rights (even if it is imprudent to proclaim an exhaustive list of those rights) but is foreign to one that supposes historical progress vouchsafes an endless list of rights—so that, as a result, nothing is really a right.

Ohio Farmer

 

Among These Rights

To My Fellow Citizens:

"No Taxation Without Representation!" was a great rallying cry of the American Revolution, but it's easy to forget why. To tax a person without his or her representatives' consent violates what the Founders understood to be one of the most sacred of our natural rights, the right to property. The right to property is one of the pillars of limited, constitutional government.

The Declaration of Independence says that we are endowed by our Creator "with certain unalienable Rights; that among these are Life, Liberty, and the pursuit of Happiness." "Among these" tells us that this list is not exhaustive. There are other fundamental rights that individuals never give up when they join society. The right to property is one of those. As James Madison said at the Virginia Constitutional Convention of 1829, "the rights of persons and the rights of property are the objects for the protection of which Government was instituted. These rights cannot well be separated." For the Founders, property is a right of all individuals and every bit as important a "personal right" as freedom of speech or religion.

What exactly is the right to property? Some people today seem to think it means being entitled to an equal amount of income or wealth – or at least a minimum amount of those. Others talk as if it means "fairness" or "equal opportunity," by which they mean having the same likelihood of financial success as every other person. But it is neither of these.

As the Founders put it in the Virginia Declaration of Rights of 1776, every person has the right of "acquiring and possessing property," and using and disposing of their property as they think best, so long as they don’t harm someone else's life, liberty, or property. The right to property can't mean that you are entitled to receive a certain amount of money from someone else – what if they don't have it? Who would you take it from? It also doesn't mean having the same likelihood of making money as another person. Some people start off with economic or family advantages that others don't have, which may give them a better chance to make money than you or I will ever have. To level all of those advantages, government would have to take their property simply to give it to you or me, which violates their right to possess property – one of the very rights government is created to protect. As Publius says in the celebrated Federalist 10: The protection of the faculties of men, from which the rights of property originate, "is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results."

Understood in light of the Founders' view of property, economic "equality" and "fairness" mean having the law protect your property the same as everyone else's. As Madison emphasized to his fellow countrymen in a 1792 newspaper article called "Property": "Government is instituted to protect property of every sort…. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own."

According to Madison, this means that it "is not a just government … where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens the free use of their faculties, and free choice of their occupations." Government-created monopolies aren't merely economically foolish; they are fundamentally unjust. So are regulations that favor one industry over another or laws in which "unequal taxes oppress one species of property and reward another." Madison's words remind us that your property is part of you, so when government treats some property unfairly, it is treating some person unfairly. By Madison's standards, much of our current tax law is not only complicated and foolish but downright wrong.

The Founders' idea of property used to inform Americans' constitutional thinking, but too many people (especially in government and the academy) have gotten away from it. Instead of embracing property as a right of all individuals that can liberate them from poverty and oppression, they see it as a malevolent force that must be controlled by a powerful government. They don't understand that labor and property are not naturally opposed – everyone, even the poorest person, has property because he owns his own labor and has the right to sell it to support himself and acquire more. They support "People Over Profits!" not realizing that profits are made by serving people – at least in a free market built on respecting every person’s right to property. They demand to know: "Are you for money or man?" not understanding that by protecting the right to property, government is for money and man.

Much of what government does today involves redistributing and restricting property, violating people's rights to acquire, possess, use, and dispose of it as they think best. If we have any hope of restoring the Founders' vision of limited, constitutional government, we must regain their understanding of the right to property. When we do, we will see clearly again, as Madison declared, that "[i]f the United States mean to obtain or deserve the full praise due to wise and just governments," it will "equally respect the rights of property, and the property in rights." 

Ohio Farmer

 

Certain Unalienable Rights

To My Fellow Citizens:

Do we have a right to health care? 

In the debate over President Obama's health care law, we've heard a lot about costs and constitutionality, but we haven't heard enough about this more fundamental question, which underlies the whole health care debate.

Those in favor of the law join President Obama in insisting that health care "should be a right for every American" and that the federal government must secure that right for all. Those on the other side have usually avoided the larger question in favor of economic and legal arguments: "It will cost too much!"; "It will hurt medical care!"; "It is beyond the legal power of Congress!" These are powerful arguments and certainly need to be made, but they concede too much of the moral high ground.

To recapture that ground, we need to be clear about what we mean by a "right to health care." Americans certainly talk a lot about rights, which makes sense given that our Declaration of Independence proclaims that it is to secure their rights that "Governments are instituted among men." But are the advocates of the "right" to health care understanding rights as our Founders did? When the American revolutionaries talked about the rights governments are established to secure, they meant "natural rights," as we can see in the preamble to the Massachusetts Constitution of 1780 written by John Adams:

The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquillity, their natural rights, and the blessings of life….

When President Obama talks about the "right" to health care, it is clear that he is talking about privileges or entitlements rather than natural rights. A privilege is a supposed good thing that is given and taken back at the will of the person who gives it. As every teenager has heard, "driving is a privilege." Parents can take away the keys to the car and a state government can change the age at which young people can drive. One can say this teenager or that teenager, or all teenagers, "should"or "should not" be granted the privilege of driving, as President Obama thinks all Americans "should be" granted health care.

Natural rights are not like that. All human beings are born with them—endowed with them by our Creator, as the Declaration of Independence says—not given them by any government.  It doesn’t make sense to say all Americans "should" have or "should not" have the right to life, for example: we "do" have it, as do all other human beings, simply by virtue of being human beings. Government exists to protect our natural rights, not to grant them. And certain of these rights, like the right to life, no one on earth can give or take away: they are "unalienable."

Just as natural rights are not privileges, they also should not be confused with entitlements. An entitlement is something that a person deserves to have given to him by someone else (and clearly this is much more what President Obama and his allies in the health care debate mean when they call health care a "right"). Natural rights are not entitlements. No human being or government can give them to us; we are born with them.

To think of health care as an entitlement, as President Obama does, is to think that all Americans somehow deserve to have health care given to us. But is that not absurd, and does it not tread heavily on our real rights? Health care is provided by people who choose to become doctors, nurses, therapists, and aides. What "right" do we have to force them to give us their services—anymore than they have a right to force us to give them our labor, whatever our job is? After all, if no one chooses to become a doctor, how could we demand to have a doctor's services given to us? Could we rightly force an unwilling person to become a doctor just so we could make her give us medical services? Of course not.

If Americans concede that health care is a "right," as understood by the advocates of ObamaCare, we will have greatly jeopardized the rights for which we instituted government in the first place. We will have greatly diminished the principled moral ground on which to resist government's growing power, not just over how we seek and provide health care, but over our rights to life, liberty, and the pursuit of happiness altogether.  Getting clear on what we mean by "rights" is vital not only to knowing how to truly reform health care but to preserving limited, constitutional government.  

Ohio Farmer

Our Promissory Note

To My Fellow Citizens:

Next Monday will mark the birthday of Martin Luther King, Jr. With the opening of his monument on the National Mall, Americans now have a day and a place to honor King's public life and legacy.

We can benefit ourselves on this occasion by taking a moment from our busy lives to call to mind King's most famous address, the 1963 "I Have a Dream" speech, delivered on the steps of the Lincoln Memorial. It has many memorable thoughts and phrases, but all of them are framed within the context of the opening lines, which declare:

we have come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

King's anchoring of his speech in the principles of the Declaration of Independence would make perfect sense to the Declaration's author. In the last significant letter Thomas Jefferson wrote less than two weeks before his death on July 4, 1826, he talked about the Declaration and his hope for America. Jefferson had been invited to come to Washington, D.C., for a 50^th anniversary reunion with the last remaining signers of the Declaration. He had to decline because of his poor health, but the invitation gave him one last chance to explain the significance of the Declaration: 

May it be to the world [he wrote] what I believe it will be, (to some parts sooner, to others later, but finally to all), the Signal of arousing men to… assume the blessings and security of self government…. All eyes are opened, or opening to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born, with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god. These are grounds of hope for others. For ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them....

For Jefferson, the principles of the Declaration were not just the historical foundation of our break from Great Britain. They were the moral foundation for our future, which was to be the story of the unfolding and deepening of the Declaration’s principles in American society and politics. America, Jefferson hoped, would become more and more "Declarational" over time.

But that would only be possible if we continued to re-learn the "self-evident" truths on which our country is built. Those truths need to be learned and re-learned by every generation, precisely because they are "self-evident." This familiar phrase does not, as we are usually inclined to think, mean "obvious."  It does not mean "innate":  you don't just know a self-evident truth by being alive. If we did, how could we explain the fact that no society in history had been fully based on those truths until 1776?

"Self-evident" means something that contains the proof of its truth within itself. It is something that is obvious once you have been enlightened to it. For example, the familiar Pythagorean theorem in geometry ("a" squared + "b" squared = "c" squared) is a self-evident truth: you understand it once you've studied it in geometry class. Before then, it is incomprehensible. After that, it is clear and easy. 

The truths of the Declaration are like that. Our Founders were enlightened to them by experience and the study of great thinkers, and we have been enlightened to them by learning and re-learning them in each succeeding generation. That is both hopeful and fearful. It is hopeful because it means that anyone can in principle learn these truths; they are not limited to a particular time, place, or culture. They can be discovered and implemented by anyone at any time and in any place. It is fearful because every generation must be enlightened to them or they will be forgotten even by those who once knew them.

Abraham Lincoln understood these facts. Inside the Memorial in front of which King spoke are the famous words of the Gettysburg Address. In that address, Lincoln began by invoking 1776, when "our fathers brought forth, upon this continent, a new nation, conceived in liberty and dedicated to the proposition that 'all men are created equal.'"  Lincoln called equality a "proposition," rather than a "self-evident" truth because in the years before and during the Civil War, many people had forgotten or denied the principle of equality; some even called it a "self-evident lie."  For Lincoln, the great purpose of the Gettysburg Address and of the Civil War itself was to restore in the public understanding the self-evidence of those truths—to restore the promise of freedom for all. That is what he meant when he called for a "new birth of freedom": freedom was born in the Founding and had to be re-born during and after the war.

One hundred years after Lincoln's efforts, Americans still faced the challenge of restoring the American promise of freedom. As King said, he had come to redeem the "promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness." Like Jefferson and Lincoln before him, King called us to remember and re-learn the meaning of our Founding principles. This is something each generation needs to do, if we are to preserve and perpetuate the great American promise of freedom to all. So this coming Monday, let's honor the American life and legacy of Martin Luther King by using the day to "refresh our recollections" of these principles and restore our "undiminished devotion to them."  

Ohio Farmer

 

One People

To My Fellow Citizens:

Many advanced democratic countries have a big problem: stagnant or declining populations. Birth rates have dropped and the average age of citizens has risen. Unless something is done, the economic and financial strains on society could be disastrous.

One possible solution is immigration. But countries in Europe and Asia have struggled with the idea of immigration because they are not sure that they can take people from other parts of the world and still remain, for example, Danish or Japanese.

Is America any different? In the days after the 9-11 terrorist attacks, a television commercial aired that made a simple but profound point. One by one, people came onto the screen: they looked different, dressed differently, had different jobs, and were from different places around the country. But each one looked straight into the camera and said the same thing: "I am an American."

They were reminding us that we Americans are "one People," as the Declaration of Independence says in its opening line. It was a bold statement to make in 1776 considering that the Americans were divided into 13 often fractious and disunited colonies. What made Americans "one People"?

In the past, countries were united by a common tribe, race, or geography, or by being subservient to a common emperor. As emperors and kings faded away in modern times, so did empires and kingdoms. But people in newly democratic countries in Europe and Asia still tended to be tied together by common race, religion, or blood, or by the geographical lines drawn by former conquerors.

Was that true of America? In Federalist 2, John Jay says:

Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.

Jay was right: in our Founding era, Americans often shared similar ancestry, language, religion, type of government, and customs. We were certainly brought together by a common struggle in the Revolutionary War. Those things did help to unite us.

Yet it is also true that even among people who seemed so similar, Americans were very different from one another. They were made up of many different nationalities, denominations, and backgrounds. Underneath our commonalities and our differences, what made us the Declaration's "one People"?

As I recalled in a previous letter, Thomas Jefferson once described the Declaration of Independence as an "expression of the American mind." He didn't say the American "heart" or even the American "character"—but the American mind. That’s important. Our heart feels emotion; character is made up of habits and dispositions. But the mind holds our ideas and principles—the ideas and principles that shape our characters and govern our emotions and lead us to choose to live as we do. That is what unites Americans at the deepest level, binds us together as "one People," and makes us the distinctive people we are.

Americans do certainly have important emotions and habits in common. We are famous for loving our country, for example, in a way that strikes some other people as too exuberant. And we are known to be habitually optimistic: for an American, the glass is almost always half full. But those sentiments and attitudes are the products of the ruling principles that united us in 1776 and still do today. We love our country because it stands for freedom. We are optimistic because freedom makes us think that we can do anything we set our minds to.

This matters. It means that the newest immigrant can be just as American as someone whose ancestors came over on the Mayflower. In fact, new arrivals can be more American because it is sometimes easier for them to understand that American patriotism is not inherited; it cannot be passed down like property from generation to generation. It is born from an understanding of the country's principles and from conforming one's civic life to them. No one is more American just because his family has been living here for many generations; anyone—regardless of where he comes from or when; regardless of his race or religion or experience—can be an American if he embraces America's ruling principles.

That's why America has always been a place open to immigrants. A person doesn't have to "look" American to come here. He just needs to embrace the political consequences of the truths,

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; that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

But he does need to embrace those truths. He has to want to be an American, not just someone who lives or works here.  Immigration has historically been a gift to America because it has always led to integration—to the newcomers becoming part of the "melting pot." Not that all our colorful differences in ancestry, religion, or customs melt away, but that we melt together morally and politically on the basis of the common principles that we all share as human beings, regardless of our race, religion, or background.

For good reason, immigration will continue to be a big issue in our national conversation. As we discuss it, let's remember the principles that should guide our thinking. Immigrants don't just bring new bodies, talents, and energy to the country. They can give us the opportunity to re-invigorate our American mind by reminding us all of the principles that make America what it is. They do this when they assume their American responsibility and become self-governing human beings who choose to live together according to the principles of liberty, equality, and the rule of law.

This is how our country renews itself in body and soul: by immigration and integration. It's how we become ever more the "one People" envisioned by our Founders.

Ohio Farmer

The American Mind

To the Members of the 112th Congress:

We saw in the last letter that the revolutionary principles Americans declared to the world on July 4, 1776—the principles that gave rise to a New Order of the Ages when, in support of them, the American people pledged their lives, fortunes and sacred honor—were not "new principles . . . never before thought of." They were principles already well understood by the American people, who were in the midst of a historic conversation about the principles of political freedom, a conversation that gave birth to what Jefferson called "the American mind."  The Declaration of Independence expressed in bold American terms the logic of political freedom that had become the common sense of the American people.

One essential ingredient of this logic of freedom, which is still very much part of American common sense, was the idea that, because human beings are equal and free by nature, legitimate government can only arise from the consent of the governed. A nation dedicated to the proposition that all men are created equal will—if circumstances permit—be under a "government of the people, by the people, for the people." In other words, the principle of equality gives rise most naturally to a democratic or republican form of government. James Madison expressed this idea in Federalist 39, where he considered whether the government proposed under the new constitution would be "strictly republican." "It is evident," he wrote, "that no other form would be reconcilable with the genius of the people of America . . . [or] with the fundamental principles of the Revolution."

Because of our conviction that consent is the foundation of legitimate government, we are concerned in every election that the election be fairly conducted, truly expressing the choice or consent of the people. But although consent is the only foundation of legitimate government, it does not follow that all governments founded on consent deserve the respect of freedom’s partisans. The Founders did not suppose that a tyranny must be submitted to by a minority just because a majority elected it. That would mean asking those who are to be oppressed by a majority to accept their oppression with equanimity—as the rightful expression of the noble principles of democracy.  It would be to tell oppressed peoples everywhere to cease their struggles for their natural rights as soon as they learn they are outnumbered. What could be more slavish?

These days this point has particular relevance to the various uprisings—some apparently supported by majorities—across the Arab world. These uprisings and rebellions are typically against various forms of tyranny, but they often seem to possess the potential to replace one tyranny with another. How would Jefferson’s “American mind” think about such human events?  It would begin, I think, by acknowledging that majority rule is the natural authoritative expression of the consent of the governed; in the same breath, it would observe that free government is instituted to secure the rights of all the people, not just the majority.  The very purpose of free government thus sets limits to what even a majority may rightly do.

Jefferson, in his first inaugural address, expressed this idea with characteristic felicity when he urged his countrymen to "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 possesses their equal rights, which equal law must protect, and to violate would be oppression." The will of the majority must be exercised within the bounds of that moral order which legitimates majority rule itself.  A thousand tyrants are no more palatable than one.  Majority rule and minority rights are therefore inseparable principles of free government. Being bound to respect minority rights does not detract from the majority’s right to rule; it dignifies it. Americans are partisans of free government, but this does not make them partisans of elective despotism, at home or abroad. Oppressive majorities deserve no more respect from us than any other oppressors.

This leads to another ingredient of the logic of political freedom or of American common sense—the idea of "equal law," which Jefferson mentioned in his first inaugural. As we have noted, the idea of human equality and freedom carries with it the recognition of human rationality; it also contains within it recognition of the limits of human rationality.  Because human beings are by nature rational beings, one man may not rightly rule over another as he may rightly rule over a non-rational being (a dog or a horse, for example).  But also, because no man is all-knowing or all-good—that is, because human reason is limited and fallible and subject to human passions—one human being may never rightly subject himself to the unrestrained will or unlimited power of another. This is what Madison meant when he wrote that "government... [is] the greatest of all reflections on human nature."

If men were angels [he wrote], no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.

Human nature or human equality—the fact that human beings are neither angels nor mindless brutes—gives rise to the idea of constitutional or limited government. This is a political constitution that conforms to the natural constitution of man. Because human beings possess reason, their consent can give rise to legitimate government; because human reason is fallible and subject sometimes to unreasonable passions, human government must be subject to law.

It required much experience, reflection, and study for the American revolutionaries and founders to equip the American mind so that its common sense might establish free government that would be good government. Their exertions have left a rich legacy to us, making it easier—though never easy!—for us to ensure that America will continue to be what the revolutionaries and founders rightly thought it was at its inception—"the world’s best hope."

Ohio Farmer

Novus Ordo Seclorum

To the Members of the 112th Congress:

America will always have the honor of being the first nation on earth to dedicate itself to the self evident truth that all men are created equal, as it did in declaring independence on July 4, 1776. In that dedication truly was created a New Order of the Ages—a Novus Ordo Seclorum as we say on the Great Seal of the United States. Let us take the occasion of this Independence Day to continue our reflections on what this means. What does it tell us about the foundations, forms, and purposes of American politics? What does it require of us—deserve from us?

Lincoln called the idea of equality the central idea of the American political experiment, from which all its other ideas radiate. It is, he wrote, “an abstract truth, applicable to all men and all times”; it is a philosophical idea about human nature and the just relations of each human being to all others. The revolutionary and founding generation of Americans expressed this idea of human equality in a variety of ways. The familiar language of the Declaration of Independence is "that all men are created equal." To express the same idea, the Virginia Declaration of Rights (June 12, 1776) stated that "all men are by nature equally free and independent." The Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts (March 2, 1780) stated that "All men are born free and equal."

To say that all men are by nature equal is to say that human beings are not naturally subordinated one to another: Whatever the many differences may be among human beings, no man is by nature a master; no man is by nature a slave. This is what Jefferson’s vivid metaphor meant, which we quoted in the last letter: "the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God." Of this revolutionary idea, at the heart of the Declaration and at the heart of the American experiment in self-government, Lincoln wrote on the eve of Civil War, “that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.” And so it has proven to be: a powerful rebuke and a stumbling block to every form of tyranny and oppression—whether of race, class, or religion, whether home grown or foreign born—that has raised its head over the past two centuries.

Human beings, then, are naturally free as they are naturally equal. It is from this human equality and freedom that the founders derived the idea that government could only be justly founded on consent. Because human beings are not by nature subordinated to one another—that is, because they are equal and free—their consent must be obtained before any human being may rightfully exercise authority over them. It is the voluntary consent of the people that gives authority to government. Only a being possessing reason—a being who can distinguish right from wrong—is capable of voluntary consent. This is why the deepest root of American politics is in the fact, as Thomas Jefferson put it in the Virginia Statute for Religious Liberty, “that Almighty God hath created the mind free.”

Government among free and equal men is formed, the American Founders would say, by social contract or social compact. In the words of the Massachusetts Constitution of 1780: "The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people." The American body-politic is a voluntary association begun when, in the last words of the Declaration of Independence, "for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge[d] to each other our Lives, our Fortunes, and our sacred Honor." This is the political community that new citizens enter into when they become citizens. To take on the responsibilities of such citizenship, it is necessary—for citizens old and new—to understand the principles on which this citizenship is based. So it is a useful tradition, as the Fourth of July comes around each year, to reflect again—and again—on the American political principles famously declared to the world on the original Independence Day.

As Thomas Jefferson wrote late in life, in drafting the Declaration of Independence he had not meant to proclaim any "new principles, or new arguments, never before thought of," but merely to express "the American mind." The Declaration contains a stunning summation of the principles of free government; but it was only because the American people already understood these principles that it was possible to establish a government based upon them. Similarly, only if we are capable of understanding these principles will we be able to preserve and perpetuate, maybe even to strengthen and improve, the free institutions—the Novus Ordo Seclorum—that began to arise from them in 1776.  For our own sake and for the sake of the cause to which our country was dedicated on that original Fourth of July, let us take this occasion to renew our dedication to that cause and its noble principles. No one else can do it for us. It will do a world of good. And it is a cause worthy of the last full measure of devotion.
Happy Fourth.

Ohio Farmer

A City Upon a Hill

To the Members of the 112th Congress:

 Is America exceptional? Is it unique among the nations? If so, what makes it so? And what are the implications of the fact? These are not policy questions, but questions about ideas and historical circumstances that are at the foundation of policies. They are the kinds of questions, it seems, that you and other elected and appointed public officials are often compelled for no particularly good reason to answer, as was the president a short time ago. Perhaps this may sometimes seem a tedious requirement of your job, especially when journalists asking the questions have no interest other than ginning up a headline. And so it is understandable if on occasion you reach for plausible sounding formulas in the hope that they will not cause a headline of an undesirable sort. But your answers can matter a great deal. They can be an opportunity to shape the public’s sentiments and opinions in a way that helps free government remain good government.  Answering such questions—even when they haven’t been asked—has in the course of our history given an opportunity for America’s greatest statesmen in small or large ways to strengthen the capacity of their fellow citizens to govern themselves. On the other hand, there is hardly a greater mischief that can be done to the people than to give them bad answers to such questions.

In my last letter I took the liberty of questioning the notion, recently espoused by some leading public officials, that America is exceptional because its principles give it a special right and responsibility to lead. This is a confusion, I argued, if an understandable confusion, of a genuine American exceptionalism that is older than America itself—namely, the idea of America as an example to the world—“a city upon a hill,” as John Winthrop said to the future Massachusetts Bay colonists.  By 1776, when the thirteen colonies assumed their separate and equal station among the powers of the earth as the United States of America, they did so proclaiming principles that made America truly exceptional.  “We hold these truths to be self evident,” they declared, “that all men are created equal, that they are endowed by their creator with certain inalienable rights,” including life, liberty, and the pursuit of happiness. No people on earth had ever based the authority of their laws on such an assertion. So the historic effort to establish government upon this principle was in truth an unprecedented and exceptional—a then unique—experiment in self government.

As Thomas Jefferson put it in his last surviving letter, written just before he died fifty years to the day after July 4, 1776, the American idea of equality meant “that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.” America was exceptional in founding our politics on what is least exceptional about us, on what we share with all other human beings at all times and in all places, rather than on any accidents of birth or circumstance that separate us.  For this reason, Jefferson thought that the principles proclaimed in the Declaration not only gave hope to all Americans but were “grounds of hope for others,” everywhere and always.

The experiment of living up to these principles is the American experiment—the effort generation after generation to rise to equality, as Lincoln put it. So long as America remains America, it will be the country first dedicated to this proposition that all men are created equal, and ever aspiring to rise to its demands. Lincoln, echoing Jefferson, called the American idea the “principle of ‘Liberty to all’—the principle that clears the path for all—gives hope to all—and, by consequence, enterprise, and industry to all.”

The American experiment claimed to be an exceptional experiment not only because of its principles, but because conditions here in America were more favorable to the experiment in self-government than anywhere else in the world. The Founders’ America really was a land of opportunity as had never been known in the world before. The United States, as the saying then had it, became “the best poor man’s country on earth.”  Ordinary people, secure in their equal liberty and therefore full of hope and enterprise, could farm their own land and enjoy in peace the bread of their labor; and for the first time in human history, they or their children could aspire without limit to great things—even to the Presidency of the United States. If the experiment in self government fails here, our Founders thought, that failure might be taken as a strong proof that, contrary to American assertions, human beings are not made to govern themselves.

Just as Jefferson and Lincoln hoped, the example of America has helped spread the blessings of liberty to other peoples. Many countries now claim equality as the principle of their politics.  May they live up to those principles, as we hope to do ourselves!

Here in America, when we succeed in living up to our principles, we do something more important than establishing our right to lead.  We establish our worthiness to lead, whenever our interest guided by our justice should require. To rise to these principles, we must understand them. And since we are not born understanding them, we arrange as best we can to learn them from one another—sometimes by listening to our politicians talk about our country—and to hand them down to our children. Can there be a more propitious occasion to refresh our understanding than the annual approach of the Fourth of July?  Let us return to these themes next week.

Ohio Farmer

A Decent Respect

To the Members of the 112^th Congress:

Following the killing of Osama bin Laden on the orders of the President of the United States, some prominent European politicians, clerics, and journalists condemned the act. Americans, many of whom continue publicly to applaud bin Laden’s death, were likened to “Muslims celebrating in the Gaza Strip” following the attacks on America on September 11, 2001. What should Americans think of such criticisms? How, more generally, should we regard the opinions of the peoples and governments of other nations?

To take the second question first, the natural American place to begin a response seems to be with the Declaration that announced our independence to the world in 1776, a declaration that was offered out of “a decent respect to the opinions of mankind,” which “requires that [Americans] should declare the causes which impel them to the separation [from Great Britain].” Declaring the causes of our actions—giving reasons for them—was an act of respect for the opinions of mankind because it treated mankind as if their opinions could respond to reasons. This was a hopeful view of the human condition. It did honor to human nature and imposed expectations on human capacities.

The central idea proclaimed in the declaration—the main reason for our action—was the self evident truth that “all men are created equal,” that is, that all men everywhere and at all times possess by nature equal rights to life, liberty, and the pursuit of happiness. Of course, this was an idea that seemed self-evidently untrue to the hereditary monarchs and nobility of Europe. So America showed its first respect for the opinions of mankind by disagreeing with most of them!—and in the same breath telling the peoples of the world how they might show greater respect for themselves, by recognizing and asserting the rights of their own humanity. 

Americans were keenly aware how difficult it would be to live up to the principle they were proclaiming—how heroic and continuous an effort would be required of themselves or any people that aspired to rise to equality. This very difficulty is partly what makes it such an “honorable determination  . . . to rest all our political experiments on the capacity of mankind for self-government.”  As I have written in an earlier letter, “Any people that wished to be free, including the Americans, would have to demonstrate this capacity for themselves, and continue to demonstrate it each generation.”  What could be more honorable to human nature? What could show greater respect to mankind and their opinions?

The American experiment claims to be a glorious experiment because it aims, for the first time in human history, to make actual the potential for self government that we Americans insist human beings have by nature. This is what the founders meant when they soberly—and by no means arrogantly—reflected on the fact that it seems to have been reserved to “the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice.”

The greatest respect Americans can show for the opinions of mankind is to take responsibility for being the kind of self governing people we invite all people to be. Taking such responsibility may require, in the sometimes hard course of human events, the killing of the bin Ladens of this world. As I said in my last letter, our men who killed bin Laden were “armed above all with the authority of the people of the United States.  That is what dignified their violence and distinguished it from the brutality authored by their target.” How can the “authority of the people”—us—dignify such an act, raise it above the barbarism and savagery of bin Laden and all who support him and cheer him on? Only, I think, if “we the people” are the people we claimed to be, insisted on being, at our beginning—a people claiming the right to govern ourselves, as we proclaim and respect the same right for all other human beings; a people doing everything in our power to cultivate in ourselves the capacities necessary to vindicate this natural human right.  

Such a people will conduct themselves so that an attack upon them could never in truth be said to be a blessing to mankind; so that if they are compelled to some harsh measure like the killing of bin Laden, the world may truly be said to be better off because of it.  Such a people will arrange the political affairs of their land so that no one could with justice wish for the displacement of their rule by that of an enemy.  They will be neither self-aggrandizing nor self-sacrificing.  They will approach the world, in Washington’s words, as their "interest, guided by justice, shall counsel."

Such a people will understand that politics, though it must sometimes resort to harsh necessities like the killing of bin Ladens, is in the final analysis not reducible to such necessities.  Even Sun Tzu, that great teacher of the art of war, understood that "[t]hose who excel in war [must] first cultivate their own humanity and justice," that war is conducted ultimately for the sake of peace.  Closer to home, our own John Adams offered his American version of that human wisdom, when he reflected , “I must study Politicks and War that my sons may have liberty to study Mathematicks and Philosophy.” The successful practice of the arts of necessity—which are forced upon us by the needs of mere life—seems to be a necessary condition for the flourishing of the arts of freedom—which we pursue because they prepare us to deserve, by using well, "the blessings of liberty."

What about the more particular question, about American rejoicings at the killing of bin Laden? Of course, no self-respecting, self-governing people will condone dancing in the street to celebrate cruel necessities. Nor would it be a proud moment for such a people to make these cruel necessities applause lines in campaign rallies. But only a good people—a people able to take responsibility for choosing right over wrong—can be a self-governing people, and the world will be a sad place when good people can no longer rejoice at the triumph, however small and incomplete, of good over evil.

Ohio Farmer

America and the World

To the Members of the 112th Congress:

America, on the president’s orders, has intervened militarily in Libya; the president has given a speech explaining the intervention and the manner of it; the country and the world debate the matter as events unfold; the outcome remains uncertain.  In his speech, the president insisted that, because the Libyan people faced "the prospect of violence on a horrific scale," America had a responsibility to act. "To brush aside...our responsibilities to our fellow human beings under such circumstances would have been a betrayal of who we are.” 

These letters are particularly concerned with “who we are” as a people and what this requires of our politics, domestic and foreign. So I leave aside for now the many other interesting and important questions swirling around the president’s words and deeds, including his deference to the United Nations and his neglect of the United States Congress. 

What does “who we are” tell us about how we should act toward the rest of the world? The president doesn’t say much about what it is that makes us who we are, though he seems now to be affirming, on behalf of our fellow human beings, a kind of American exceptionalism, about which he had been studiously ambiguous in the past. We might begin to think about who we are by considering the two most important ideas in American political life.  The first is found in the Declaration of Independence, which was cited in the last letter and will surely be cited often in future letters—the idea that “all men are created equal.” The second is derived from this idea and is found in the opening phrase of the Constitution: it is the idea of consent expressed in the familiar words, “We the People of the United States.”  These are words and ideas, not to conjure with, but to consider carefully as events demand our attention and action at home and abroad. As long as Americans are Americans, these ideas will certainly continue to be essential ingredients of who we are. So what do they tell us about us? 

The immediate practical purpose of the Declaration was to establish the right of the colonists to separate from the British Empire and its hereditary monarchy.  In this case, declaring all men equal meant that God did not give one man or his family a divine right to rule other men.  Human equality meant that government derived its powers justly only from “the consent of the governed.”  The claim that men were equal meant that not the accident of birth but the deliberate consent of men—“We the People”— was the only rightful basis for government. 

The Declaration had a larger purpose, a broader reach, than the dispute between Great Britain and the United States of America.  Its declaration of human equality denied not only a right to rule based on birth but a right to rule based on race or religion.  Declaring all men equal meant that a common humanity was more fundamental than the accidents of race or religion that separated human beings.  

The universality of this founding principle explains something of the claim the world has on American sympathies.  Having based our national life on the equality of all men, we recognize that in principle any human being is a potential citizen of the United States. We feel an affinity with people around the world, especially those struggling for freedom or stricken by natural or manmade disasters.  In our common humanity, we believe somehow that our hopes and fortunes are tied to theirs.  These feelings can give rise to a sense of obligation that seems to be what President Obama has in mind—our “responsibilities to our fellow human beings,” which he invokes when he says it would be a betrayal of who we are if we didn’t intervene in the way he chose to do in Libya. 

But in fact, of course, only Americans are American citizens.  Our revolution began with a universal claim about human equality, but it culminated necessarily in the establishment of a particular nation.  “We the People of the United States” are distinct from the other peoples of the world not by birth, race, or religion, but by the deliberate act of establishing ourselves as a different people.  By this act of consent, the people of the United States committed themselves to each other, as distinct from all the others who live outside the bond of citizenship.  In a world where freedom was scarce and tyranny commonplace (a world, in this respect, very like the one in which we continue to abide), we committed ourselves to establishing our own freedom and preserving the blessings of liberty in the United States, not to assisting the democratic aspirations of others or their recovery from disaster, however sympathetic we may be to the plight of our fellow men and however eager we may be to help them. 

No model or mathematical formula can help us strike the proper balance between what we owe to our fellow men and what we owe to ourselves.  Such balance is a matter for judgment and deliberation, as circumstances arise.  This judgment will take into account the diverging claims of equality and consent, the former what Americans share with other peoples, the latter how we distinguished ourselves from them.  These two American principles temper each other as we deliberate about how we as a people should act in a dangerous world of potential fellow citizens. 

Our deliberations will be well served by reflecting that the American founders thought the best thing Americans could do for the rest of the world was to succeed in our own experiment in freedom. As the founders thought of it, the American cause—the cause of liberty— is the cause of mankind.  If we could show by the success of our experiment that free government could be good government, this would be the greatest gift Americans could give to their fellow human beings—our own political well being would be a constant act of philanthropy.  America’s success would be cause for all men to rejoice. By the same token, failure of the American experiment in freedom would “deserve to be considered as the general misfortune of mankind.”  

From this point of view, Americans should want to know how our intervention in Libya enhances the prospects of the American experiment. If it does, the world will be a better place. If it doesn’t, it betrays America’s primary responsibility to our fellow human beings.

Ohio Farmer

Capacities of Mankind

To the Members of the 112th Congress:

In recent weeks, the course of human events—from Tunisia, to Libya, to Egypt, to Syria—reminds Americans once again that tyranny is common in the world, that it is hard to remove, and that it is even harder to replace it with freedom and good government. We Americans, of every political stripe, generally like to consider ourselves enemies of tyranny and friends of freedom in the world. Of course, we have lots of debates among ourselves (and with others) about what this means and what this requires of American foreign policy. These debates have been rekindled lately, and I take this occasion to recollect that America came into existence by overthrowing a tyranny and that we have had our own struggles replacing it with freedom and good government.

Our success in these struggles—to the extent that we have met with success—is due to moral and political habits and dispositions that arise from principles that must be learned. These principles and dispositions are the most essential conditions of freedom. Everything else is secondary. Without them, you might exchange an unpopular for a popular tyranny, an incompetent and destitute tyranny for a competent and wealthy one. But you will never have free government.

America began its experiment in freedom with what has become and will forever remain the most characteristic and defining American affirmation:  “We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights.”  The truth of human equality and liberty was asserted against all tyrannies—whether of race, class, or religion, one, few, or many.

That men throughout history tyrannized one another in an infinite variety of ways was not proof to the American founders that human beings do not possess equal rights by nature—rather it was proof of how rare and difficult a thing it is to secure them.  It is proof of the philosophic rigor, the moral discipline, the political sagacity, and the beneficence of opportunity that are required for reflection and free choice to prevail over ignorance, prejudice, accident, and force.

Proclaiming that all men everywhere and at all times possess by nature equal rights to life, liberty, and the pursuit of happiness, the American founders undertook the historic effort to secure these rights, so far as they thought they could then be secured, to a small people at a particular place and time.  They were acutely conscious of the limits of their ability to secure these rights.  When they were able to establish a “more perfect union” they understood full well how far from perfection they remained.  It was all the new republic could do in the first century of its existence to keep the American experiment in freedom from failing miserably at home while other less fortunate experiments struggled to give birth to  freedom in other parts of the world.

In the course of its history, the American people have many times fallen beneath the high standards they set for themselves at the beginning.  They have strayed from those principles, and they have forgotten them, and become confused about them, and allowed misunderstood self-interest to obscure them.  Our own experience has confirmed for us that democracy requires more of its citizens than any other form of government and that it is no accident that history provides so few examples of successful and enduring democracies.  We count our blessings—the blessings of liberty—when we reflect with John Adams, "how few of the human race have ever had an opportunity of choosing a system of government for themselves and their children," and how few have chosen well.

The “genius” of the American people at the time of the American revolution and founding made it both possible and necessary to establish a country based on the republican principles proclaimed in the Declaration of Independence.  As Jefferson said in explaining the genesis of the Declaration, the ideas expressed in it were “the common sense of the subject” in America.  He was merely expressing “the American mind.”  It was only because the American people had learned to embrace republican principles that it was possible to establish an American republic.  I mentioned in an earlier letter the American founders’ “honorable determination  . . . to rest all our political experiments on the capacity of mankind for self-government.” This was a determination, James Madison affirmed, “which animates every votary of freedom.”  But the founders understood that any people that wished to be free, including the Americans, would have to demonstrate this capacity for themselves, and continue to demonstrate it each generation.  

As the Declaration of Independence proclaimed, the just powers of government are derived from "the consent of the governed."  Only a people prepared to consent to a free government are capable of establishing one; and once they have established it, as Ben Franklin never ceases to remind us, they will need to have what it takes to “keep it.”  At the least, this means a people must be prepared to recognize their own humanity and that of their fellow citizens; they will neither aspire to be masters nor submit to be slaves; they must be prepared to rule and be ruled in turn and to abide by the laws they claim the right to make for themselves.

We know from our own American case, even with all the natural and historical advantages we have had, that it is not easy to achieve or to keep and pass on these capacities for self government. Experience and common sense tell us that these capacities are going to be even harder to achieve without the great advantages we have had. So let us be patient and moderate in our expectations from those who may face great disadvantages.

Ohio Farmer

Reconstitutionalizing America

To the Members of the 112^th Congress:

To bring American government back within the bounds of the Constitution —to reconstitutionalize it—will be no easy or simple task.  How dismissive of the Constitution our government has become was memorably expressed by then Speaker of the House, Nancy Pelosi, in two widely quoted remarks about the health care bill that ultimately became the Patient Protection and Affordable Care Act (PPACA), whose constitutionality is seriously in dispute right now.  It is worth recalling her words, because they are a surface expression of an attitude toward our politics that is deeply entrenched and must be replaced by a very different attitude if we are to recover constitutional self-government. In October 2009 when a reporter from CNSNews.com asked, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Pelosi replied, “Are you serious?  Are you serious?”  Then in a March, 2010, speech, Pelosi said, “We have to pass the bill so you can find out what’s in it.”

Her rhetorical question—“Are you serious?”—was, of course, meant not to begin but to end conversation. Such contemptuous dismissal of citizens’ serious concern about constitutionality made many voters indignant last November, and they carried their well justified indignation with them to the ballot box.  The arrogant contempt continued in the sniffing dismissals that greeted the new Congress’s show of respect for the Constitution.  This arrogance comes from a belief that is held to be unquestionable. This is the belief that the New Deal irrevocably transformed America into a country whose central government has the authority to address any social or economic problem, and to mandate or proscribe any individual conduct plausibly related to alleviating that problem.  To the former Speaker and those who agree with her, it is preposterous—mind-boggling—that any 21st century American should presume to question this article of faith. The same arrogant incredulity struts and postures angrily in Wisconsin and Ohio and other states where public employee unions and their advocates in the media assert a right to collective bargaining that is somehow supposed to be regarded as sacred and beyond question. Whatever citizens may think of the merits of the question, the arrogance of such assertions sticks in the craw of those who cherish self-government.  

Pelosi’s second statement acknowledges that in this post-New Deal America, when Congress does something, it’s not really Congress that does it.  We have to pass a bill to find out what’s in it because what’s “in” it resides nowhere in the language of the legislation, but in the rulings and regulations that will be handed down, months and years after the bill-signing ceremony, by administrative agencies empowered by Congress to make all the practical policy determinations. What one New Dealer advocated in 1937 has come to pass—every important law enacted by Congress is really “a declaration of war, so that the essence of the program is in the gradual unfolding of the plan in actual administration.”  In PPACA’s declaration of war on the problem of people being uninsured, under-insured, or over-insured, it creates 159 new federal entities to devise and execute a battle plan.

Representative Pelosi is right about the way America is governed now: The federal government can do just about anything it wants, and can do it just about any way it wants.  It can do this because, in the course of the last two generations, the federal government has assumed responsibility for the social and economic well-being of every American.  This required the creation of programs for managing in minute detail all the social and economic relations between all the different members and segments of American society—employers and employees, producers and consumers, doctors and patients, husbands and wives, parents and children, and on and on. Because Congress cannot possibly write legislation governing so many details of so many interactions, it must outsource rule-making to boards, agencies and commissions, such as the Elder Justice Coordinating Council or the Cures Acceleration Network created in PPACA.   

As the New Deal was gathering steam the Supreme Court held, in 1935, that such “delegation run riot” violated the Constitution’s assignment of legislative power to Congress.  That is, the Constitution does not permit Congress to delegate its powers to any other governmental entity.
The Court has never explicitly overturned that decision, though it has implicitly negated it over the subsequent 76 years by acquiescing as Congress plunged ahead in riotous delegation.  When Congress delegates real governance in this way to agencies not answerable to the American people, it creates the conditions for lawless policy, subjecting every detail of American life to regulators bound by nothing but their own will.  

In the reading of the Constitution with which the newly elected House of Representatives began its first session, one hopes that every member gave full attention to Article One, Section One: “All legislative powers herein granted shall be vested in a Congress of the United States.” Supreme Court justice Hugo Black famously wrote about the First Amendment that “‘No law’ means no law.”  By the same token, we cannot reconstitutionalize American government until jurists, legislators, and citizens begin to insist, “‘All legislative powers’ means all legislative powers.”

This reconstitutionalization would have been assisted if the House had also sat for a reading of the Declaration of Independence, especially the part about governments “deriving their just powers from the consent of the governed.”  The 62nd Federalist Paper warned us against the sort of hyperactive government needed to secure every citizen’s socioeconomic well-being: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow.”  The predicament becomes much worse when the blizzard of edicts is issued, not by “men of our own choice,” but by appointed and usually life-tenured civil servants who cannot be removed or rebuked by mere citizens.  This arrangement dilutes and attenuates the consent of the governed so severely that it deprives the government of what the founders considered the only source of legitimate power.   We should bend our efforts to recovering the full range and authority of the constitutional consent from which the just powers of government are derived.

Ohio Farmer