Mr. Foley, a partner in Schwabe, Williamson and Wyatt, practices law in Portland, Oregon.
He presented a version of this paper to the trustees and guests of FEE at the May 1987 annual meeting, which celebrated the 200th anniversary of our Constitution.
As the weary delegates emerged from convention on that stifling September day now two centuries past, a woman approached the elder statesman of the time and inquired, “Pray, and what have you given us, Dr. Franklin?” He replied, “A republic, madam, if you can keep it!” This essay posits the Constitution as a promise made but unfulfilled; it proposes to describe that promise, to delineate its breach, and to assess the possibility for future atonement.
The prologue to the American Revolution presents one stark aspect overwhelming all other facets: The human condition well fit the Hobbesian declamation of “short, solitary, nasty, and brutish.” Ages forgotten struggled against the forces of nature and the depravity of hominoid brutes in an unceasing and ever-losing battle against violence, starvation, incivility, and death. Generations existed in the same fashion as their antecedents of centuries past: They suffered the same diseases and un-pleasantries of a short and sorrowful life; they advanced in knowledge by toddler’s steps, stumbling backward and eradicating gains almost as they were attained; in sum, the world conquered mankind and merely permitted it to exist, wallowing in poverty and pestilence.
Weak shafts of light penetrated this bleak existence, testimony to the inherent worth of mankind. Candles from Grecian, Roman, and Saracenic glory partially illuminated the darkness, only to be shortly snuffed. Our essential inquiry: whether the American experiment, of which our Constitution forms the centerpiece, merely constitutes one of these infrequent beams in the coldness of human history, or whether the Founding Fathers wrought something novel and enduring for all time and for all mankind.
Surely the promise of 1787 was the representation of the latter. The revolution brought forth a new nation in a new world, inhabited and governed by men quite unlike their ancestors in outlook, although flawed with the identical frailty of all human creatures.
The founders employed a distinct and radically different hypothesis of the worth and re sponsibility of each individual. Drawing from a century of incandescence generated by Locke, Montesquieu, Bacon, Hume, and Smith, the framers no longer viewed men as mere chattels of the divinely-endowed monarch or pawns of the blessed aristocracy. Rather, each individual possessed a worth, a value, a dignity of his own; he was endowed—and not by other men—with natural rights, rights which ought not to be traduced by his powerful mentors, neighbors, ecclesiastics, or kings.
Quite apart from the later Benthamite calculus which demonstrated beyond cavil that better empirical results flow from a free society, the architects of our Constitution recognized the essential moral premises of unrestrained creative human action. Of course, man’s lot improves with the development and distribution of more and better goods, services, and ideas; more saliently, however, it constitutes a moral imperative heretofore noted only transitorily that no man possesses the wisdom, the talent, and the moral privilege to choose for any other sentient being; indeed, to arrogate to oneself such an audacious function deprives the person compelled of essential humanity.
This shocking declaration of individual liberty, this unbridled assertion that each person ought to remain unlimited in the use of his creative and productive energy, this wholesome embrace of an emerging natural rights theory perched upon a moral base, called forth a unique view of the essence and function of the state. Before the grand experiment we now celebrate, all power resided in the state which dribbled droplets of permission upon the heads of favored inhabitants. Naturally, what the state gave, the state could take back, as sanction for departure from enforced orthodoxy, as punishment for real or imagined abuse, or for any other frivolous reason whatsoever.
With the advent of the United States, a new doctrine held forth, divining that all power resided in the self-governing individual; only a few, limited, clearly defined powers—those considered necessary to order society, to solve disputes, to deter aggression—were delegated to the government by the individual citizens. The concept of a free society thus embodied the elements of the moral private property order (necessarily flowing from the belief that free men must remain unconstrained in the production, distribution, and trade of products and concepts) and a strictly limited government, a state which left a broad range of human action free from interference.
Thus, the premise of individual liberty which undergirder both the Declaration of Independence and our Constitution must be viewed against a wholly disparate backdrop of slavery and want. Virtually all ideological and empirical precursors to the United States of America developed in a condition of poverty and backwardness and employed cruelty and tyranny as the dominant tool of governance.
Contrast the American experiment: Individual citizens were to remain free from most restrictions upon their creative endeavors; each man possessed dignity and worth; every person enjoyed a broad ambit of choice and tolerance; and, the concept of limited government sought to assure the open texture of society, free from the bars of prior restraint. The premise became a promise, because no objective observer would deny the existence of imperfections in this bold new structure—after all, the incidents of human slavery and indenture, the denial of certain property rights to women, the encroachments wrought by commercial licensure and taxation, the development of internal improvement programs, among other examples too numerous to mention, betray the inaccuracy of any assumption that Dr. Franklin and his colleagues concocted a perfect solution in 1787.
No Guarantee of Success
The promise of liberty is a guarantee of an open-textured society, of opportunity unchained from forceful human barriers. It does not assure success in any particular venture, or a felicitous outcome for all individuals in the state, or a happy and prosperous life. No system of governance can make such a promise without engaging in the most disgusting fraud. The rhapsody of a free society sounds in the potential improvement of the human condition by the concatenation of results achieved by myriad actors no longer impeded by the harsh codes of human minds. If each individual possesses merit, and if observation teaches that all of us display incurable character flaws, it follows that no single citizen or group ought to intercede with force in any other man’s quest, no matter if the journey or the path seem abysmally foolish to all onlookers.
The founders sought to fulfill the premise and the promise by construction of an institution of government quite unlike any forerunner. They recognized that such a structure must ac commodate the curious duality of mankind—our light and sinister aspects—in order to achieve the grail of individual liberty. The delegates read history. They understood Lord Acton’s dictum (“power tends to corrupt; and absolute power corrupts absolutely”) before its utterance. They perceived that those few glimmers in human history arose in periods of relative freedom, times of relative diminution of state power. And, they learned sadly that each such lantern had been extinguished all too soon.
Observation of human proclivity and study of human action afforded the framers—a most extraordinary collection of men—ample examples of good intentions gone wrong. A fundamental religious faith and scrupulosity leavened their historical perceptions with essential moral tenets necessary to the development of their imaginative endeavor, a truly free and tolerant society, one not wedded to the redundant errors of the past. The promise of the open society they envisioned could be accomplished only if the sinister tendencies residing in each human being might be quelled in a fashion which solely restrained destructive behavior, leaving the greater creative and productive power unhindered.
Positing these principles, the founders set about the business of the day in 1787. They soon discarded the initial suggestion to repair the Articles of Confederation. Instead, they applied their efforts to a new edifice, one designed to accomplish their vision. Precedent demonstrated that the greatest threat to personal liberty dwelt in public coercion, that legal fiction denoted “government.” Purportedly conceived from a Rule of Necessity, this monopoly of compulsion surrounded by trappings of juristic propriety exhibited an unalterable tendency to demolish freedom and promote tyranny, often accompanied by paeans and platitudes of the highest order. Thus, the draftsmen applied their considerable talents to assure—to the best of man’s limited ability—that no such coercive edicts would restrain the creative activities of the inhabitants of the new nation, all the while cognizant of the second greatest threat to true liberty, the forceful and fraudulent behavior of other men not carried out under the aegis of the state.
Our forefathers felt compelled to deal with these twin turbines of tyranny, collective evil, and individual malevolence. Since deterrence and punishment of the latter formed the sine qua non of the state, and was assumed to constitute the necessary element of good government, the delegates spent considerable time during convention drafting sessions and debate attentive to the former and greater danger. To fulfill the promise of a government dedicated to the preservation of liberty, a state foreshadowed by the Jeffersonian Declaration a decade earlier, the founders designed a constitutional republic, the exemplar of the classic form of a limited government.
A Limited Government
The grand norm contained four major limiting concepts, each in its discrete manner contrived to reduce the common human propensity to seize and exercise power over the lives and destinies of others. First, the Constitution divided governmental powers between the Federal republic and its constituent states; this division of powers rested upon the doctrine of subsidiarity which recognized that propinquity renders a coercive monopoly less subject to abuse. The thirteen states displayed common traits, including disparate but similar constitutional guarantees of individual rights; those protections remained in place with the creation of the Federal union. Second, the delegates limited the powers ceded by the inhabitants and the states to the general government. Those powers granted were written in the plain language of the day, and all unspecified powers were retained by the lesser states or their individual citizens. Third, the few powers granted to the national government were separated and diffused among legislative, executive and judicial branches, each performing essential functions, and each exercising controls (“checks and balances”) over the competitors. The unhappy English and French histories of unitary state excesses weighed heavily upon the draftsmen. Fourth, as an afterthought, and as an inducement to adoption, the framers added a specific Bill of Rights, further declaiming the rights of individual citizens to be unfettered by avaricious and smothering government.
in essence, as Dr. Franklin advised his entreator, the convention brought forth a republic. The draftsmen of 1787 were scholars. Certain attributes inhered in a design termed “a republican form of government”: a notion of limited governmental powers, operating under a written instrument, governed by selected representatives chosen for their wisdom, discretion, and foresight, and not wholly unlike the judges of the Old Covenant. Most assuredly, these chosen representatives were expected to govern soberly and civilly, unswayed by transient passions of envy, greed, jealousy, and covetousness.
Thus, in September of 1787, the convention provided this fledgling nation with a promise of a free society, a republican form of government subject to retention or discard.
It has become commonplace to assign a specific date or event as the genesis of the downfall of the American Republic. Albert Jay Nock chose the year of his birth (and, incidentally, the natal year of Lenin and Roscoe Pound), 1870; for others, the Wilsonian Revolution (Federal Reserve Act, 16th Amendment, entry into World War I) fills the bill; still others select the advent of the New Deal, Camelot, Vietnam, Watergate, or even hearken back to Shays’ Rebellion or Marbury v. Madison. In truth, the breach pre-existed in both the premise and the promise, lending prescience to Franklin’s strange answer.
The quintessential element of a constitutional republic for a liberal society exists in the accountability of the individual citizen. Self-government demands personal responsibility, tolerance for broad differences in ideas and actions, willingness to accept untoward consequences of ill- advised conduct. Democracy differs not at all from mob-rule; in 1841, Charles Mackay [Extraordinary Popular Delusions and the Madness of Crowds] collected myriad examples of wrong-headedness, most of which (e.g., Tulipmania, the South-Sea Bubble, the Mississippi Scheme) resided in the collective memory of 1787. Simply put, the mass is nearly always wrong; aggregate thought and action magnify mistakes and drown out innovation. A simple voting majority in a democracy may employ the ballot to rape, pillage, or oppress the minority with juridical impunity.
Cognizance of these evils of human behavior impelled the draftsmen to construct a republican government in an attempt to shield the dissenter from the excesses of majoritarianism. Limited powers, divided powers, separated powers, written rights, all coalesce in a noble undertaking of liberty—and all depended upon individual accountability, the amenability of each man to accept the consequences of his actions and to bridle the common desire to shunt unexpected or unhappy effects onto the unwilling shoulders of his neighbor.
The promise did not die aborning. Indeed, it survives today in attenuated fashion. Observers from Alexis de Tocqueville, to Rose Wilder Lane, to Henry Grady Weaver noted the astonishing outpouring of creative energy released in the humane economy protected by the republic. Liberty improves behavior as well as production. Thus, the early years of the republic witnessed stupendous accomplishments in eradication of disease and increase in material choice; in addition, greater moral harmony ensued, as men and women, left to their own devices, learned how to make better choices, choices no longer dictated by the grinding poverty and tyranny of the past.
The Constitution created no Golden Age of perfect freedom, no light that somehow failed. Intolerance, greed, envy, and coercion rode across the American scene as surely as the fabled four horsemen of the Apocalypse. State and national governments did intrude into the creative realm on occasion (e.g., commercial barriers, internal improvements, post roads) and powermongers did secure subsidies and special privileges to the detriment of consumers and competitors. Nonetheless, the premise reined in these riders, as society in general remained committed to a belief in the felicity of human freedom. Cursory perception discerns significant differences in direction and content between Dickens’ “best of times, worst of times” in the Old World, and the enlightened new nation.
Just as patently, however, we have not kept the faith with Franklin. The breach of promise occurred not with sudden swiftness. Rather, it took place in trundling bits and pieces. The woodsman’s axe from without melded with the rot within to fell the oak of the republic. We no longer read; hence, we no longer read history. We refuse to make fine distinctions; hence, we fell prey to sirens and panderers. We lack consistency; hence, we created intolerable exceptions for ourselves at the expense of others. We believe responsibility imposes too great a burden; hence, we accept second place in moral behavior and thrust our load upon another human being. In short, we acted as men always have acted, in an amazing parallel to, say, Rome, and we reaped the consequences.
Today’s Alexander Pope will deny the breach. Today’s Voltaire must set him aright. No effective limit on government exists; citizens act creatively only on privilege subject to whimsical revocation or, more often, merely by virtue of the innate clumsiness of bureaucracy. Separation of powers? Nonsense! An inconsistent and unwelcome judiciary acts as the Privy Council of old, while the Congress passes out favors and limits market entry more artfully than any French assembly; meanwhile, the executive rambles on its merry way, issuing edicts in the forms of unchecked regulations and executive orders reminiscent of the monarchs of days gone by. Division of powers resembles a chimera; the local governments, denuded of any real authority, cluster at the Federal fount, playing pressure group politics as surely as any labor union, business association, or other collection of brigands. Brick by brick, stone by stone, the republic has collapsed and, in its place, a “democracy,” more like a vulture than a phoenix, has risen.
Historical criticism demonstrates a singular fact: Human assessment and prediction is never quite accurate, and the closer one stands to an event, the less likely he is to discern its significance correctly. Thus, those who foretell a descent into a Dark Age for the United States of today are probably quite as wrong as a Mr. Mi-cawber heralding a brave new world. In addition, mankind displays an innate ability to avoid foolish restrictions, an ability expanded by a heritage of freedom. For these reasons, a free society manifests a considerable resiliency, a survival in kind even after decades of dark oppression. Hence, hope remains that the breach may be cured and the promise of a constitutional republic resurrected.
How does this nation recapture the promise of freedom? Not with smug platitudes, vacant clichés, and muddled thinking. Not with conduct separated from integrity and principle. Not with a continued resolve to ignore the law of causal consequence. Not with the devotion to inept tutors and teachers. Certainly not with an eye devoid of historical fact. We have lost our republic simply because we have lost sight of the premise of the promise: Liberty affords the greatest opportunity for human fulfillment, and the essential cornerstone of a free society is a unique commitment by the vast majority of all citizens to the principle of individual responsibility.
The vision of freedom is clear, its virtues manifest and unassailable. Perversely, stalking the ideal proves exceedingly difficult; as observed, even the candles of relative liberty in cons past have snuffed quickly. The following redirections should help us find our way if we, as a nation, truly wish to reapproach the benign condition devised to us 200 years ago.
First, recapture the wraith of liberty. Understand, with Isaiah Berlin, the connotations of positive and negative liberty. Assign only proper functions to the state—maintenance of order, settlement of insoluble disputes, prevention of aggression; remove from government all chores which render it a monitor of nonaggressive behavior or a builder of societal edifices. Release each man from all bonds upon his creativity; restrain only his destructive and aggressive behavior. Recognize the indivisibility of liberty in all disciplines, and cast aside such vacuous distinctions as “commercial” versus “non-commercial” speech and “human rights” versus “property rights”; permit the private property order, the market, to exist and satisfy the subjective values of each voting participant in that dollar democracy. Rediscover the rational, empirical, and moral foundations of the free society.
Second, observe the necessary limits upon a state and upon the outcome attainable by any form of government. To reiterate: Freedom provides an open texture without prior restraint; it does not guarantee felicity. Many state temptresses proffer the seduction of happiness, order, security, equity; such enticements defraud those who listen; no form of government could fulfill such a promise, and any who heed the siren’s song return to muck and mire. The state consists solely of destructive power; it cannot create, only destroy, and it tends to cause unanticipated and unpleasant results, most likely because men of power fail to understand simple rules of causality, morality, and human activity.
Third, comprehend the role of individual accountability in a republican order. Remember: Freedom necessarily includes the freedom to fail. Choice involves selection from a range of alternatives. Finite human creatures may choose beneficially, or they may err significantly, or their pick may rest somewhere along the continuum between merit and detriment. Further, the range of effects, good or ill, may not become readily ascertainable. Freedom compels each choosing actor to accept all consequences of his selection; it does not permit him to toss out his bad choices, to ameliorate the detrimental effects thereof by compelling another individual to accept those unintended or unhappy results, in whole or in part. A society which allows some participants to retain only beneficial results and to thrust the discards upon their neighbors is not free; it operates in the same fashion as the mandate state of the past, where, in George Orwell’s prophetic Animal Farm, “some pigs are more equal than others.” The compelled recipient of another’s bad choice loses an important aspect of his very humanity; only a poltroon would term him “free.”
Personal responsibility forms the touchstone of freedom. The delegates understood that each man’s liberty depends upon that equal and reciprocal right residing in every other individual. If A employs the law to shunt the burden of his bad choices unto the unwilling shoulders of B, B loses his freedom to that extent, no matter how moderate and polite A’s motives. A also loses some of his liberty (albeit by his own choice) and humanity, for tyranny requires unproductive effort to keep the slaves in line. Also, in the democracy of the day, B may seize the juridical apparatus in order to get even or get ahead. The result: Frederic Bastiat’s circle of pickpockets, each mulcting the other.
It requires no small arrogance to use such harsh words in our circumstances. Educators, newsmen, politicians and preachers lull us into a somnolent mirage: Live for the day, for “in the long run we are all dead”; alchemy lives and dross deficits become universal benefits; I possess rights, you owe duties; freedom and subsidy for me but limited market entry and unwholesome regulation for you, because of “our special circumstances”; the market failed, and in its stead we have erected a humane society; freedom is free in its place, but we must sustain the arts (build a safety net, ensure competition, enforce orthodox behavior, or any of thousands of droll substitutes).
A litany of abuse of our Constitution by those seeking special privilege demonstrates the distance we have traveled from the convention of 1787. Every inroad into human creativity displaces more brick and mortar from the edifice of constitutional republic. Every usurpation of power by the state weakens the structure and portends its collapse. Forget motives; assume that each breach takes place with the sweetest and most innocent of intention. Breach occurs, no matter the design.
Each one of us harbors favorite ends, the product of our subjective value system first described by Carl Menger almost a century after Franklin’s comment. Propriety orders each individual to support his own charity, to further his own interest, to improve his own position by trading his produce in the marketplace, and to seek his own destiny, all without compelling others to join in his quest. Instead of this ideal, permitted by a republic of limited, diffused, and separated powers, we have bowed to our envy, apathy, and inconsistency and have retreated from any semblance of personal responsibility. And as a result, we have substituted a grab bag for a market, and have become a nation of petty thieves and dictators. Atonement requires recognition of our error, resolve to correct our ways, and advance towards the liberal society bequeathed to us 200 years ago.