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Thursday, July 4, 2019

This Fourth of July, Remember the Promise (and Price) of Liberty

Recall those who embraced the rhetoric of liberty and continued to plant the seeds for prosperity and the document which inspired it, on this July Fourth.

Photo by frank mckenna on Unsplash

John Adams wrote home on July 3rd, 1776, that the day before would “be the most memorable Epocha, in the history of America” to be celebrated “from one End of this Continent to the other from this Time forward forever more.” He was off by two days. 

The final draft of the Declaration of Independence was approved July 4th, 1776, now the chosen day of celebration. In one of those strange coincidences of history, this date of nationwide celebration in 1826 was also the day John Adams and Thomas Jefferson died, two of five who sat on the committee to draft the Declaration. 

Legal Separation

The document contains a legal argument for separation from England coupled with a list of grievances detailing how the English government had failed to fulfill its duties. The legal argument is set within a political philosophy which sets criteria for legitimate government. 

Sociologist and political theorist Max Weber hypothesized there are three categories of legitimate rule: traditional authority, charismatic authority, and legal authority. Origins of authority set expectations for both the ruled and rulers and differ both in the system and results. Actions taken by one authority type may not be legitimate by the other. Additionally, political participants vary depending on the sources of authority and subsequently introduce different incentives.

What makes a government legitimate is more than a story we tell ourselves.

Liberal democracies trend toward a legal authority (dysfunctional democracies toward charisma), and are often formed by an authorizing act such as a constitution or bargain with the traditional authority which later gives way to a legalistic view. English Parliament, as an example, was a creation of the Crown to circumvent the Baron class but is now the primary legitimate state power. 

What makes a government legitimate is more than a story we tell ourselves. It is a manner to judge the validity of government actions and even generates different economic outcomes. Economic historian Jared Rubin details the economic improvement enabled by the shift away from religious legitimacy, legitimacy derived by religious ratification and approval of governments, to other forms of secular legitimacy many of which evolved into some form of democratic rule. Rubin argues that economic outlook improved when political systems became accountable on more secular terms. In his account, merchants and others like them were able to influence the bargain making it more amenable to commerce. Before, they played a comparatively diminished political role in legitimating rulers. 

What Determines a Government’s Legitimacy?

The United States is no exception, we too depend on standards of government legitimacy. Though the United States certainly falls into the legal authority category in Weber’s classifications, it also relies on a specific set of political ideas to establish legitimacy as voiced in the Declaration of Independence. The Declaration establishes that government is legitimate when it secures “unalienable rights” to “life, liberty and pursuit of happiness” and if it “derive[s] its powers from the consent of the governed.”

These statements are more than a recognition of democratic government but that self-governing, democratically-elected governments are the logical outflow of individual rights. In the origin of the United States, individual rights precede democratic action, not just temporally but morally as well. First rights, then democracy. 

This type of self-governance is distinct from a democracy-as-the-ends view, in which any legislation that arrives through democratic action is a legitimate exercise of state power. Instead, the Declaration adopts an individualistic dignified approach to democracy, contrasted with the ancient view of liberty where the collective took precedence or a commonly held belief that the majority possesses inherent moral or practical authority. 

Ideas are the foundation for democratic performance, the central idea of state performance begins with the consideration of the legitimate use of state power.

The ideals of the Declaration are more than theory, however. Ideas are the foundation for democratic performance, the central idea of state performance begins with the consideration of the legitimate use of state power. The answer provided in the Declaration of Independence to “what is legitimate” is then: the protection of liberty, life, and the pursuit of happiness. This is a pursuit which is entangled with the ownership of property, even the ability to seek means to improve economic circumstances—economic liberty. 

Drawing on a Lockean political view, the drafters of that prestigious document—primarily Thomas Jefferson—and the other signatories understood the pursuit of happiness to include the right to property, to economic participation, and of improvement. Such was the language in the Virginia Declaration of Rights just completed by George Mason which similarly posited that government may be dissolved if it fails to maintain legitimate ends.

These ends upheld in the Virginia Declaration, which informed Jefferson in his draft, included the familiar, “life and liberty” phrase, paired with the less familiar, “the means of acquiring and possessing property, and pursuing happiness and safety.” The liberty view adopted, leaning toward commerce, together with the language of rights being equally distributed among the people, was important rhetoric which helped propel us into our modern age of economic abundance. 

Liberty and Unalienable Rights

The Founders, broadly speaking, drew on what they understood to be their English heritage of liberty, a heritage they felt denied. As F.A. Hayek put it,

colonists had brought these ideas with them and now turned them against Parliament. They objected not only that they were not represented in that Parliament but even more that it recognized no limits whatever to its powers.

Note the emphasis on the two characteristics of legitimate government authority in America, selected democratic representation and limited government to protect an individual’s natural rights. Though Hayek did not employ the common term in the Declaration, “unalienable rights,” his emphasis on limiting government authority corresponds with ideas of strong individual rights which cannot be divested.

Writing at the same time—his most famous work was published in 1776—Adam Smith defended the concept of property and the right to gainfully pursue betterment.

The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. To hinder him from employing this . . . in what manner he thinks proper without injury to his neighbor, is a plain violation of this most sacred property.

This is an excellent definition of economic liberty, one which became entangled with core concepts of liberty.

Pursuit of Happiness

As Benjamin Constant observed in 1819, liberty

is the right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings.

The Declaration captured this pro-commerce, pro-market, pro-liberty rhetoric. It helped establish and preserve the idea that commerce, trade, property, and innovation, were beneficial to human betterment; to the pursuit of happiness. 

Yet, one is justified in asking,

If this is a nation founded on individual rights then why were those rights not extended to political minorities, why was political access restricted to a relatively small voting class? And what about slavery?

These are valid concerns, and will go partially unaddressed. One unsatisfying answer is this was a period of transition from illiberal hierarchies (traditional authority) and policies to a liberal (free) order. Change does not all occur simultaneously. This is compounded by the fact that established politic and economic interests encouraged exclusion from democratic and economic participation and thus perpetuated legal regimes which saw people as second class citizens or property.

A more relevant answer for the purpose of this essay is that these ideas, though incomplete in execution, helped propel this nation into an era of greater prosperity and liberty. In short, ideas matter. Speech matters. This is speech aimed at prosperity and dignity. 

Commerce and Slavery

Deirdre McCloskey, in her tour de force Bourgeois Trilogy, documents the impact on prosperity arising from the changed rhetorical approach to commerce, embracing it on friendlier terms. Beginning in Holland around the 1600s, then moving to England as well as the United States, a pro-commerce shift in rhetoric helped reshape attitudes toward markets and innovation. Attitudes which are embraced (McCloskey notes in Bourgeois Equality) in the successor to the Declaration, the Constitution.

Importantly this rhetoric has helped implement necessary change for a more prosperous and free society after the Declaration was signed. It stands as a rhetorical measuring stick. A few examples. 

Frederick Douglass, employed the rhetoric of the Declaration to expand the cause of freedom, setting it as a foil against the treatment of the “American slave.” Douglass asks:

Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? and am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits and express devout gratitude for the blessings resulting from your independence to us? 

Douglass continued:

Would you have me argue that man is entitled to liberty? That he is the rightful owner of his own body? You have already declared it. Must I argue the wrongfulness of slavery? Is that a question for Republicans? Is it to be settled by the rules of logic and argumentation, as a matter beset with great difficulty, involving a doubtful application of the principle of justice, hard to be understood? How should I look to-day, in the presence of Americans, dividing, and subdividing a discourse, to show that men have a natural right to freedom? speaking of it relatively, and positively, negatively, and affirmatively. To do so, would be to make myself ridiculous, and to offer an insult to your understanding. — There is not a man beneath the canopy of heaven, that does not know that slavery is wrong for him.

Douglass utilized the rhetoric of the Declaration to reveal the hypocrisy on full display in the July Fourth celebrations. This wasn’t a condemnation of the document itself, neither of the Constitution, which Douglass praised as a liberty document, but a revelation of the incompleteness of the American Revolution.

Civil Rights and the Declaration

Abraham Lincoln similarly relied on the Declaration, during this crucial juncture for liberty, as a rhetorical tool to illustrate both the necessity for universal principles to guide law and to establish the legitimacy of the American government. In a speech at Peoria, Illinois, Lincoln explained

“no man is good enough to govern another man, without that other’s consent. I say this is the leading principle—the sheet anchor of American republicanism. Our Declaration of Independence says:

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; 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.’” (emphasis in original)

The Civil War was a particularly contentious time, and both the Union and the values of liberty were threatened. 

At other times of social movement, this rhetorical approach was also adopted. During the Civil Rights era, one of, if not the, leading spokesman to end the history of discriminatory practices, namely the end of the legal regime we call Jim Crow, employed the promise of legitimate government in his cause. These words should ring with familiarity:

In a sense we’ve 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.” It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned…I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.” (emphasis added). 

These were spoken by Martin Luther King Jr. artfully expounding on the words of the Declaration of Independence and their promise of liberty, equality, and the pursuit of happiness. This promise was justly compared to the illiberal treatment of African-Americans in the United States. 

Economic Justice

These individuals did not embrace all the rights I suggest are embedded within the Declaration of Independence. Lincoln was not a full-fledged free trader, though his ideological predecessor Ulysses S. Grant (Andrew Johnson who took office on Lincoln’s death was a compromise pick as Vice President) adopted greater free trade measures. However, Lincoln did at times defend the right of people to engage in commerce. 

Martin Luther King Jr. focused on civil rights, and not on economic freedom. At the time the former loomed large, casting a shadow on others. Some report he even sought “economic justice” throughout his life to provide more equal outcomes. Despite his measured embrace of the classical liberal origins, he embraced the rhetoric of the Declaration to argue for the expansion of freedom.

Frederick Douglass, in contrast, appeared enthusiastic regarding his participation in commerce, recounting the first money he earned as a free man.

To understand the emotion which swelled in my heart as I clasped this money, realizing that I had no master who could take it from me—that it was mine—that my hands were my own, and could earn more of the precious coin—one must have been in some sense himself a slave.

Perhaps, owing to our comparative good fortunes, we overlook the joy of commerce. 

Precarious Liberalism

The rhetoric lives on. The ideas are what mattered and they are embedded within our speech and thought. There is no guarantee such ideas will continue. The history of the United States suggests liberalism is a precarious system, it is always assailed by illiberalism. Examples abound beginning with the struggle over the illiberal and ancient institution of slavery. Not only did it nearly break the Union, but it nearly broke the ideas of liberalism embraced by the Declaration. The Confederacy saw that document and the ideas it communicated as a threat to their institutions, and they openly rejected them. Alexander Stevens declared in his Cornerstone Speech that the Confederacy was

founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and moral condition.

The south rejected the ideas of the founding documents for the preservation of a slave order. Quite illiberal. 

Similarly, Jim Crow and the class-based legal systems struck at the heart of liberalism, drawing deep divides between people. The legal barriers many faced provided advantages (rents) to established actors. This encouraged a system of rent-seeking based along ethnic and racial lines wholly at odds with the phrase “all men are created equal.” This phrase was given legal protection in the Fourteenth Amendment guaranteeing “the equal protection of the law”—along with protection of “life, liberty, and property” via the due process of Law clause—but was gutted by rulings such as Plessy v. Furgeson. 

The apotheosis of this illiberalism manifested during the progressive era, which overlapped with much of Jim Crow. Early progressives often exaggerated or invented racial differences to justify legal regimes that discriminated against those considered inferior. It was common in the intelligentsia of the era to advocate eugenics to improve the population, wanting to weed out undesirable characteristics among the population. These characteristics were said to be inherent to certain populations, not just African descendants, but also between the different European populations as well. 

Liberty Shifted America to Be a Pro-Commerce Society

Laws were imposed at the state level to weed out those wrongfully considered inferior and to protect certain racial and ethnic identities from competition. Minimum wage laws, mass sterilization, marriage licenses and anti-miscegenation laws, maximum hour laws (often applied against women exclusively), and many other forms of economic protectionism were implemented. This era was a tide of illiberalism with some tenants persisting to this day. We still have many forms of licensure which, though they thankfully lack an explicit racial motive, work to exclude participants in many economic fields. Minimum wage laws remain, often harming those most in need of assistance. And the ideas of New Deal, which was washed ashore by the ideas of the Progressive Era, lingers to this day in the form of an extensive regulatory state.

Despite waves of illiberalism, the ideas of the Declaration persist, influencing the masses toward a more bourgeois society. Many fail to grasp the benefits of a free society, but they are tangible. Good institutions, free trade, the rule of law, and open society, all persist thanks to the rhetoric of liberty. Since the Declaration was written we have witnessed an unprecedented explosion of economic growth, a “Great Enrichment.” McCloskey explains the magnitude of this growth,

the Great Enrichment increased real income per head, in the face of a rise in the number of heads, by a factor of seven—by anything from 2,500 to 5,000 percent.

Now we stand as the benefactors of this document and the ideas which inspired it, reaping never before seen material and social benefits. Certainly, not all gains are directly attributable to the Declaration. Yet, the ideas encapsulated in the Declaration of Independence—establishing legitimate government and maintaining a rhetoric of liberty—shifted us toward a pro-commerce society. 

Remember, since that document was signed we have seen: the greatest increase in wealth in human history propelled by ideas of liberty, even economic liberty, dramatic increases in nutrition, dramatic decreases in child mortality, an upward shift in life expectancy, cheaper clothes, climate controlled buildings, fewer deaths from: exposure, disease, nature, and the wild things of yore. Recall those who embraced the rhetoric of liberty and continued to plant the seeds for prosperity and the document which inspired it, on this July Fourth.

This article is republished with permission from Medium. 

  • James Devereaux is an attorney. All views are his own and not representative of employers or affiliations. 

    Husband and father of four. Graduate of Brigham Young University with a B.S. in Psychology and William & Mary School of Law.