Just the sort of speech the IRS would
target.
In April of last year I was invited by
the Alabama Policy Institute to give a talk on the Founders’ concept of rights
as embodied in the Declaration of Independence. An abridged version of the
paper from which I spoke is set forth below.
This week’s headlines make clear that
what follows is the sort of speech the Obama administration has systematically
sought to stifle through IRS intimidation and other means.
The administration’s actions make it all
the more important, in my view, for Americans to revisit our republic’s
founding documents and doctrines. To that end, I offer here an introduction to
topics that are as at least as important today as they were at the time of the
American Revolution.
Introduction
Over the years my appreciation for our system of
limited government has grown — right along with my concern that our attachment
to limited government as a nation has been shrinking. In my view, it’s most unfortunate
that there is a growing “dependency” constituency pandered to by politicians in
Washington, who have long since lost sight of the virtues of limited
government.
In our current political environment, in order to
defend our rights and the Constitutional system created for their protection,
it is essential that we understand them. It is vital that we understand not
only what sorts of rights we should cherish and defend, but also what other
so-called “rights” we should greet with great skepticism.
Let’s recall James Madison’s teaching that
“[k]nowledge will forever govern ignorance; and a people who mean to be their
own governors must arm themselves with the power which knowledge gives.” We
should recall where we started, and with that in mind consider the current
fashion of disdain for the Constitution and the rights recognized in our
Declaration of Independence.
The Vision of the Founders
In Colonial times Americans were viewed by the
British in London as provincials living on the periphery of the Empire, as
simply another set of people to be ruled. The Americans sensed an increasing
arrogance on the part of the English. The Colonists resented their treatment at
the hands of what they considered an imperious and distant government.
Their complaints were particularized in the
indictment of London embodied in the Declaration of Independence, which noted —
among other charges — that the King had “obstructed the administration of
justice,” “erected a multitude of new offices, and sent hither swarms of officers
to harass our people,” imposed taxes “without our consent,” and “excited
domestic insurrections among us.”
In contrast to our modern day ruling elites, our
Founders did not see themselves as standing apart from their fellow colonists.
As Gordon Wood noted in his splendid book Revolutionary Characters,
“Unlike intellectuals today,” the Founders “had no sense of being in an
adversarial relationship to the culture” of their country. Rather, they were
very much a part of it, excited by its promise, and dedicated to its success.
They were also willing to take risks. They had the
audacity to propose something genuinely new, and to proclaim the independence
of their states from England even as they were being hunted by British troops.
And so, they all signed the Declaration of Independence, pledging to one
another their “lives,” their “fortunes,” and their “sacred honor.”
The Declaration of Independence
The Declaration of Independence starts with an
invocation of universal principles — principles that are not limited to a
particular time or place. Thus, “When in the course of human events,” does not
limit the Declaration to the time or place of its writing, but to any occasion
when “it becomes necessary for one people to dissolve the political bands which
have connected them with another.”
Invoking a higher authority, “the laws of nature and
of nature’s God,” the Declaration proclaimed “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.”
In the Colonies, those who favored independence were
almost unanimous in the view that “the proper ends of government were to
protect people in their lives, liberty, and property and that these ends could
best be obtained through a republican form” of government. Accordingly,
the Founders established a republic, in which a majority could
never legally vote to violate the natural rights of the minority.
What Are “Unalienable Rights”?
The Founders understood that rights belong to
individuals, not to groups, and that their purpose is to fence off the freedom
of individuals from the power of the state. Accordingly, as the Constitution
later specified, the government cannot deny you the right to free speech, to
freedom of religion, to freedom to assemble in public or private to preach or
protest, to freedom from involuntary servitude, to be secure in your home and
person, and even — as the Supreme Court has recently confirmed — to keep and
bear arms for self-defense.
These and similar rights acknowledged by the
Founders as natural, or endowments from our Creator, are “negative”
rights. Such rights are not granted by government; they exist independent
of it. The duty of government is to protect them, and if government fails in
that duty the people are entitled to abolish it and start afresh.
Concerns About Tyranny
Concerned as they were with the threat of tyranny,
the Founders saw the standard for assessing the legitimacy of a government as
whether it rests on the consent of the governed. They distinguished, by the
way, between the “will of the majority” and the “consent of the governed.” The
Founders feared a pure democracy, in which the “will of the majority” could
mean that “all decisions are ultimately political and are routed through the
government.”
To the Founders, the rights to life, liberty, and
the pursuit of happiness (or the fruit of one’s labor) were not meant to be up
for grabs by a greedy or intolerant majority. They were clear in this view,
which is a central reason why the Constitution grants our central government
only specifically enumerated — and checked and balanced — powers, with all
others reserved to the states or to the people.
More Contemporary Declarations and
“Positive” Rights
Of course, the Declaration of Independence and the
Constitution are now more than 200 years old. Today our ruling elites chafe
under the constraints these founding documents impose on our central
government.
About a decade back our President, then a state
senator and adjunct law professor, gave an interview in
which he said that the Supreme Court had failed to “break free from
the essential constraints … placed by the founding fathers in the
Constitution.” He lamented that “generally the Constitution is a charter of
negative liberties. Says what the states can’t do to you. Says what
the Federal government can’t do to you, but doesn’t say what the Federal
government or State government must do on your behalf.” He called for action
“on the ground” to “bring about redistributive change.”
Our President has been consistent in his call for
expansion of the government’s powers either under or despite the Constitution,
to “break free” from the Constitution’s “constraints” in order to achieve
“fairness” through, among other things, the redistribution of wealth. If
accepted by the Congress and the courts, the “liberation” of our federal
government from the limits imposed by the Constitution would indeed be
transformative.
In a similar vein, in February 2012, when Supreme
Court Justice Ruth Bader Ginsburg was asked what document emerging democracies
should look to in drafting a constitution, she pointed not to our own
Constitution but to the 1997 constitution of South Africa. That document,
in contrast to the U.S. Constitution, includes positive rights, for example
stipulating that citizens have the right to adequate housing.
And Cass Sunstein, a law professor who was President
Obama’s chief regulatory “czar,” says that South Africa has “the most admirable
constitution in the history of the world.” Presumably he ranks it above
the U.S. Constitution, probably along with Justice Ginsburg and our President.
In addition, Sunstein has opined that the President, and not the Supreme Court,
should be empowered to interpret the Constitution and its application to
federal legislation. (Of course, he’s also opined that the rights to
private property and freedom of speech are, like “Medicare and food stamps,”
nothing more than “taxpayer-funded and government-managed social services
designed to improve collective and individual well-being.”)
In short, from these and other examples widely
reported, we have more than a few judges, presidential appointed “czars,” and
elected officials who seem disdainful of the United States Constitution, which
they have sworn to uphold. Naturally these views also find support in academia
and the mainstream media.
To underscore the point, in February 2012 no less an
authority than the New York Times published an article proclaiming
that the U.S. Constitution “is terse and old, and it guarantees relatively few
rights.” Continuing, the article lamented that “[t]he commitment of some
members of the Supreme Court to interpreting the Constitution according to its
original meaning in the 18th century may send the signal that it is of little
current use to, say, a new African nation.”
A law professor quoted in the article traces the
“waning influence” of our Constitution to “the availability of newer, sexier
and more powerful operating systems in the constitutional marketplace.”
Note to James Madison: Don’t phone home; if you
can’t Skype, forget it.
The Boom in “New” Rights
All these pontifications did not come out of the
blue. In fact, most came out of law schools, and out of public officials
influenced by legal academia.
As Walter Olson described the phenomenon in his
excellent book Schools for Misrule, in recent decades legal
academia — like the political left — has had a penchant for “couching… demands
and preferences in terms of purportedly fundamental rights, asserted as if
timeless and universal but in fact proliferating and evolving on a restless,
unending, ad hoc basis.”
So from assorted conferences sponsored by legal
academia, to treaties and conventions spawned by a variety of international
organizations, we are taught that “[t]he old ‘negative’ rights to be left
alone… must give way to assertions of new ‘positive’ rights to government
action.”
Now, in our enlightened era, we see calls for the
recognition of a slew of “positive” rights. These include the right of all
“peoples [to] self-determination,” the right to “an equitable distribution of
food supplies,” and such nascent rights as freedom from hate speech (which
of course means the right to silence those who say the “wrong thing”), “freedom
from want,” and even the right to gender reassignment surgery.
The Problem with Positive Rights
Just thinking about the seemingly endless stream of
newly minted positive rights, I’m sure you perceive the problem. Is it possible
to preserve individual liberty and at the same time provide for the fulfillment
of these various “positive rights”? Can one enforce “equality” without
destroying “liberty”?
In the 1970's, Harvard philosophy professor Robert
Nozick, in his highly acclaimed book, Anarchy, State, and Utopia,
sought to explain why any scheme for achieving “distributive justice,” based on
the notion that a particular distribution of wealth is necessary to achieve
“fairness” (have we heard this term lately?), is destructive of liberty.
Nozick offered a teaching example along these lines.
Suppose a distribution of wealth that is “fair” or “just” to all; maybe all
share equally, or maybe not, but all agree that the distribution is just.
Suppose further that people enjoy watching Wilt Chamberlain play basketball,
and that a million people each pay one dollar to watch him. So, Wilt “The
Stilt” winds up with one million dollars more than his initial distribution.
Is this unjust? Each person who saw him “chose” to
give Wilt Chamberlain a dollar. The “just” distribution has been altered
because people voluntarily transferred their resources, in a way of their
choosing. Only by forceful transfer of Wilt’s new found wealth can the original,
“fair” distribution be restored.
Nozick explained that “fairness” in distribution can
never be “continuously realized without continuous interference with people’s
lives.… To maintain a pattern one must either continually interfere to stop
people from transferring resources as they wish to, or continually… interfere
to take from some persons resources that others for some reason chose to
transfer to them.”
Professor Nozick framed the issue cogently. It is
very much a live issue today, especially when one considers the views of
administration officials, legal academics, and media elites on the
Constitution’s guarantees, which they consider — in the words of the New
York Times — “parsimonious by international standards” and (like some
prehistoric insect) “frozen in amber.”
So Where are We?
In my view, in every sense, this discussion takes us
back to where we started. In 1776.
Running through all of the positive rights talk, and
all of the lamentation over our Constitution’s “parsimonious” limitations, is
the notion that rights come from government, that our government’s powers have
no limits. That’s not what Thomas Jefferson and the other Founders believed, as
they made quite clear in the Declaration of Independence and the Constitution.
Read carefully here, please: Of our Constitutional
government, James Madison said, “In Europe, charters of liberty have
been granted by power. America has set the example… of charters of power
granted by liberty.” He called this a “revolution in the practice of
the world,” which introduced “the most triumphant epoch of its history.”
Although they led a revolution, the Founders
counseled in the Declaration that “governments long established should not be
changed for light and transient causes.” In today’s political environment, this
advice should be taken to heart by those who favor the exercise of
unprecedented and essentially unlimited power on the part of the federal
government. For it is they who propose to effect fundamental changes in our
government, in furtherance of their own fashionable but transient causes.
Happily, today more than at any time in our lives,
Americans are intensely interested in the Declaration and the Constitution —
and in the limits the Constitution places on the separate powers of Congress
and the President.
The Founders would find this entirely appropriate.
After all, they did not live in ivory towers outside the reach of real world
politics. Indeed, they wrote the Constitution, in language their fellow
Americans could understand, very deliberately; the public of the time read not
only the document but also the Federalist Papers that debated its merits and
meaning.
The Constitution, as the Founders well understood,
is not the property of politicians and academics, or of some self-proclaimed
intellectual elite. It is ours; it belongs to “we the people.” We owe it to
ourselves and to our children to understand its terms, and to join in a new and
urgent national conversation about how it should empower and constrain our
federal government in today’s world.
Ray V. Hartwell, III, is a Washington
lawyer and a Senior Fellow of the Alabama Policy Institute.
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