This essay was originally published by Constituting America in July 2020.

 

To secure the unalienable natural rights of the American people, the American Founders designed a republican regime. Republics had existed long before: ancient Rome, modern Switzerland and Venice. Great Britain itself could be described as a republic, with a strong legislature counterbalancing a strong monarchy—even if the rule of that legislature and that monarchy over the overseas colonies of the British Empire could hardly be considered republican. But the republicanism instituted after the War of Independence, especially as framed at the Philadelphia Convention of 1787, featured a combination of elements never seen before, and seldom thereafter.

The American definition of republicanism was itself unique. ‘Republic’ or res publica means simply, ‘public thing’—a decidedly vague notion that might apply to any regime other than a monarchy. In the tenth Federalist, James Madison defined republicanism as representative government, that is, by a specific way of constructing the country’s ruling institutions. The Founders gave republicanism a recognizable form beyond ‘no-monarchic.’ From the design of the Virginia House of Burgesses to the Articles of Confederation and finally to the Constitution itself, representation provided Americans with real exercise of self-rule, while at the same time avoiding some of the turbulence and folly of pure democracies, which had so disgraced themselves in ancient Greece that popular sovereignty itself had been dismissed by most political thinkers ever since. Later on, Abraham Lincoln’s Lyceum Address shows how republics must defend the rule of law against mob violence; even the naming of Lincoln’s party as the Republican Party was intended to contrast it with the rule of slaveholding plantation oligarchs in the South.

The American republic had six additional characteristics. America was a natural-rights republic, limiting the legitimate exercise of popular rule to actions respecting the unalienable rights of its citizens; it was a democratic republic, with no formal class of titled lords and ladies or hereditary monarchs; it was an extended republic, big enough to defend itself against the formidable empires that threatened it; it was a commercial republic, encouraging prosperity and innovation; it was a federal republic, leaving substantial political powers in the hands of state and local representatives; and it was a compound republic, dividing the powers of the national government into three branches, each with the means of defending itself against encroachments by the others.

When considering the American course of events recorded in our histories, students of our republic might consider each event as a reflection of these features of that regime as designed by the Founders, or, in some cases, as a deviation from that regime. To do so is to see how profound and pervasive American republicanism has been, how it has shaped Americans’ lives for more than two centuries, how it continues to do so today. 

A natural-rights republic. The charter of the first English colony, Jamestown, was written in part by the great English authority on the common law, Sir Edward Coke. English common law was an amalgam of natural law and English custom. The Massachusetts Bay Colony, founded shortly thereafter, was an attempt to establish the natural right of religious liberty. And, of course, the Declaration of Independence rests squarely on the foundation of the laws of Nature and of Nature’s God as the foundation of unalienable natural rights, several of which were given formal status in the Constitution’s Bill of Rights. As Nat Turner’s slave rebellion in 1831, the Dred Scott case in 1857, the Civil Rights amendments of the 1860s, and the attempt at replacing plantation oligarchy with republican regimes in the states after the Civil War all show, natural rights have been the pivot of struggles over the character of America. Dr. Martin Luther King, Jr. and his colleagues in the post-Second-World War civil rights movement invoked the Declaration and natural rights to argue for civic equality, a century after the Civil War. As a natural-rights republic, America rejects in principle race, class, and gender as bars to the protection of the rights to life, liberty, and the pursuit of happiness. In practice, Americans have often failed to live up to their principles—as human beings are wont to do—but the principles remain as their standard of right conduct.

A democratic republic. The Constitution itself begins with the phrase, “We the People,” and the reason constitutional law governs all statutory laws is that the sovereign people ratified that Constitution, whereas federal statutory laws are enacted only by their elected representatives. George Washington was elected as America’s first president, but he astonished the world by stepping down eight years later; he had no ambition to become another George III, or a Napoleon. The Democratic Party, which began to be formed by Thomas Jefferson and James Madison when they went into opposition against the Adams administration, named itself for this feature of the American regime. The Seventeenth Amendment to the Constitution, providing for popular election of senators, the Nineteenth Amendment, guaranteeing voting rights for women, and the major civil rights laws of the 1960s all express the democratic theme in American public life. This theme is so powerful that our most intelligent of foreign observers, Alexis de Tocqueville, wrote a rather lengthy book on the subject.

An extended republic.  Unlike the ancient democracies, which could only rule small territories, American republicanism gave citizens the chance of ruling themselves in a territory large enough to defend itself against the powerful states and empires that had arisen in modern times. All of this was contingent, however, on Jefferson’s idea that what his ally James Madison called our extended republic would be an “empire of liberty,” by which he meant that new territories would be eligible to join the Union on an equal footing with the original thirteen states. Further, every state was to have a republican regime, as stipulated in the Constitution’s Article IV, section iv. The extension of this republic, ‘from sea to shining sea,’ as the song lyric goes, began with the Northwest Ordinance and continued with Jefferson’s Louisiana Purchase, the Lewis and Clark expedition, the Indian Removal Act of 1830, the Mexican War of 1848, the purchase of Alaska and the acquisition of Hawaii. The construction of the Transcontinental Railroad, beginning in the 1860s, the Eisenhower Administration’s Interstate Highway Act of 1956 consolidated the extended republic. The construction of the Panama Canal, the two world wars, and the Cold War all followed from the need to defend that republic from foreign regime enemies and to keep the sea lanes open for American commerce.

A commercial republic.  Although it has proven eminently capable of defending itself militarily, American was not intended to be a military republic, like ancient Rome and the First Republic of France. The Constitution prohibits interstate tariffs, making the United States a vast free-trade zone—something Europe would not achieve for another two centuries. Alexander Hamilton’s brilliant plan to retire the national debt after the Revolutionary War and the founding of the New York Stock Exchange in 1792 ensured the financial stability of the commercial republic in its early years. Above all, commerce sparks innovation: Eli Morse’s telegraph; Alexander Bell’s telephone; Thomas Edison’s phonograph and light bulb; the Wright Brothers’ flying machine; Philo Farnsworth’s television. And we’ve seen how commerce in a free market can go wrong if the legislation and federal policies governing it are misconceived, as they often were before, during, and sometimes after the Great Depression.

A federal republic. A republic might be ‘unitary’—ruled by a single, centralized government. The American Founders saw that this would lead to an overbearing national government, one that would eventually undermine self-government itself. Accordingly, they gave the federal government enumerated powers, leaving the remaining governmental powers “to the States, or the People.” The Civil War was fought over this issue as well as slavery, question of whether the American Union could defend itself against its internal enemies. The substantial centralization of federal government power seen in the New Deal of the 1930s, the Great Society legislation of the 1960s, and the Affordable Care Act of 2010 have renewed the question of how far such power is entitled to reach.

A compound republic.  A simple republic would elect one branch of government to exercise all three powers: legislative, executive, and judicial. This was the way the Articles of Confederation worked. The Constitution ended that, providing instead for the separation and balance of those three powers. The compound character of the American republic has been eroded by such notions as ‘executive leadership’ —a principle first enunciated by Woodrow Wilson but firmly established by Franklin Roosevelt and practiced by all of his successors—and ‘broad construction’ of the Constitution by the Supreme Court. The most dramatic struggle between the several branches of government in recent decades was the Watergate controversy, wherein Congress attempted to set limits on presidential claims of ‘executive privilege.’ Recent controversies over the use of ‘executive orders’ have reminded Americans of all political stripes that government by decree can gore anyone’s prize ox.

The classical political philosophers classified the forms of political rule, giving names to the several ‘regimes’ they saw around them. They emphasized the importance of regimes because regimes, they knew, designate who rules us, the institutions by which the rulers rule, the purposes of that rule, and finally the way of life of citizens or subjects. In choosing a republican regime on a democratic foundation, governing a large territory for commercial purpose with a carefully calibrated set of governmental powers, all intended to secure the natural rights of citizens according to the laws of Nature and of Nature’s God, the Founders wet the course of human events on a new and better path. Each generation of Americans has needed to understand the American way of life and to defend it.

 

 

The following essay was published by Real Clear Politics in the “1776” series, in February 2020.

 

After winning the independence they had declared in 1776, Americans had to prove that they could sustain self-government in peace. They’d governed themselves already, as colonists, but now the British government no longer protected them from the other European powers, and indeed remained a potential enemy of the new country. It’s easy for us today to wonder why American statesmen from Washington to Lincoln seemed obsessed with building and sustaining “the Union,” or why President Jefferson so readily bent his constitutional scruples to purchase Louisiana from Napoleon to extend it. But to Americans then, looking at maps of North America, seeing their republic surrounded by hostile empires and nations whose rulers viewed republicanism, and often Americans themselves, with fear and contempt, maintaining the Union meant survival—survival not only of their way of life but of their very lives.

How to strengthen that Union, the new American state—not a simple, centralized state as seen in Europe throughout the modern period, but a confederation—without losing the new American regime, one of the few existing democratic republics? The first American constitution, the Articles of Confederation, seemed incapable of holding the Union together. Americans tried again, framing the much-amended, much-abused, but still existing United States Constitution, which took effect in 1789.

To understand American self-government under that Constitution, one can do worse than to begin with its First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” These civil rights, which parallel the unalienable, natural rights enunciated in the Declaration of Independence, stand at the center of republicanism considered as an activity of self-government. They limit the power of Congress, the branch of the federal government charged with legislating. They prevent Congress from legislating republicanism out of existence. 

First, religion. The Founders understood that religious institutions could exercise immense authority over human souls. If such institutions are fused with such engines of rule as executive power, including police and military forces, legislative power including taxation, and judicial power including imprisonment and capital punishment, rulers will more readily demand unquestioned obedience from subjects. They will have no reason to respect citizens—only subjects. A few decades later, the monarchies of Europe banded together in what they called the Holy Alliance against republican regimes. While they were reacting primarily to the excesses of the French Revolution, they were no friends of the United States or of Great Britain, which by then was widening its electorate, becoming more nearly a republic in the American sense.

“No law” means no law. There shall be no establishment of religion in America—meaning, no church or other institution, membership in which entitles the congregant to fuller political rights and powers than other citizens or empowers an ‘established’ church to compel other sects to conform to its rules and practices. Further, Congress can enact no laws prohibiting religious exercise; citizens can freely organize churches and other religious communities as fully fledged civic associations, with no interference from federal lawmakers.

President Washington underscored Americans’ religious freedom by writing to every major religious denomination in the country during his first term in office, affirming American religious liberty even before the First Amendment solemnized it. Probably the three most controversial religious groups at that time were Quakers, who declined to participate in wars, even wars defending the country; Catholics, often regarded as suspect adherents to a foreign power, and as proto-monarchists as well; and Jews, targets of age-old prejudices.

Washington assured the Hebrew Congregation which met at the Tauro Synagogue in Newport, Rhode Island that Jews would not be merely tolerated in America, but that the new republic recognized their natural and civil rights to worship God as their consciences dictated. It was evidently the first time any Christian head of state (Washington was an Episcopalian had so recognized Jewish practice. Commending Roman Catholics for “the patriotic part which you took in the accomplishment of [the] Revolution, and the establishment of [the] Government,” he promised that “all who conduct themselves as worthy members of the community are equally entitled to the protection of civil government.” And to the Annual Meeting of Quakers in 1789, he observed that “the liberty enjoyed by the people of these states of worshipping Almighty God agreeably to their consciences, is not only the choicest of their blessings but also of their rights.” Quakers were second to no Americans as “exemplary and useful citizens.”

Self-government isn’t doing what you want to do; it is doing what you want to do in conformity with the laws of Nature and of Nature’s God, discernible by reason and by your conscience as they are enforced by free exercise of religious practices.

Washington’s letters display two crucial features of American religious freedom. First, it is preeminently a protection of the exercise of religion, not a restriction of its exercise. In his Farewell Address, he would call “religion and morality” “indispensable supports” of those “dispositions which lead to political prosperity.” Self-government isn’t doing what you want to do; it is doing what you want to do in conformity with the laws of Nature and of Nature’s God, discernible by reason and by your conscience as they are reinforced by free exercise of religious practices. At the same time, such freedom isn’t unlimited. Some religious practices might be accommodated but also criticized—Washington politely chided Quakers for refusing to join in military self-defense—or even banned, if they contradict civil laws founded upon natural right, such as religiously inspired rituals involving killing or torture. (You may freely worship the gods of the Aztecs, so long as you refrain from sacrificing virgins to the Sun God.) Congress may make no law prohibiting religious exercise, but that doesn’t prevent Americans from enforcing state laws against (for example) violations of the right to life, typically subject to state and local statutory prohibition. American federalism leaves many such crucial governmental functions to the states, functions that form part of the American enterprise of self-government.

Freedom of speech and of the press must not be prohibited—they cannot even be abridged by Congress. here, we must know what the founding generation meant by such a formula: freedom of political speech and publishing. Slander, libel, and obscenity were universally banned by state and local law, and could potentially be banned by federal law, too. Republican government requires discussion and deliberation by the sovereign people, How else could citizens make their sovereignty effective? This is why the Preamble to the Constitution begins with “We, the People of the United States.”

To rule by popular opinion requires the protection of those who speak and write on political topics. We cannot shout ‘Fire!’ in a crowded theater because that isn’t a political act but a dangerous violation of civil society and of natural right. Equally, rule by popular opinion doesn’t mean protection of all means of expressing those opinions—for example, the aforementioned slander, libel, and obscenity, to say nothing of conspiring to commit commercial fraud or treason. And even these unsavory tactics are harder to punish if committed in political debate against a public official or candidate or office. Speech and writing directed against private citizens in civil society have always been more strictly ruled than political speech and writing, largely as a means of keeping civil society civil. The contemporary claim, popularized in the late 1960s, that ‘everything is political’ is, among other things, an attempt to bring such tactics under constitutional protection, with results much-deplored in public discourse today.

Similarly, the right of the people peaceably to assemble and to petition the government for redress of grievances cannot be abridged by Congress because it, too, numbers among the means of popular sovereignty. Here again, popular sovereignty means the rule of the people in accordance with reason and conscience. We may assemble peaceably, not riotously; we may attend public meetings, but not disrupt them; we may petition our elected representatives but not interfere with their governmental duties.

All of this means that the freedoms protected by the First Amendment comport with every aspect of the American Founding, an attempt to design governments that secure natural rights for American citizens. In so doing, the Founders required of themselves, and of all citizens, self-government. Even the most prominent of the ‘permissive’ educators of fifty years ago, A. S. Neill, titled his book Liberty, Not License. By self-government, the Founders meant the rule of reason—”rational liberty,” as Publius terms it in Federalist #53. Such liberty begins with the individual, who learns to discipline his passions in childhood and youth within a family and in church and school. It radiates out into civil society—into local, state, and federal government, the latter charged with the responsibility of guarding American self-government from enemies foreign and domestic, by means of the Union whose structure the Constitution articulated.

Indeed, as Publius argues in Federalist #84, “the Constitution is itself, in every rational sense, A BILL OF RIGHTS.” By this he means that even without an enumeration of such rights as religion and political freedoms, the Constitution declares and specifies “the political privileges of the citizens in the structure and administration of the government.” That is, it is one thing to list our rights but quite another effectually to protect them. I can make myself the most elaborate ‘to do’ list of worthy actions, but if I lack the means of acting in accordance with it, I’m just doodling. The Constitution supplies the architectural drawing of the American regime of self-government. Like all structures designed for human life, it encourages those who dwell in it to walk in some ways and not in others. Any political regime guides citizens toward a way of life. The founders of our regime intended the American way of life to be one of freedom rightly understood—as ready compliance with, and defense of, the laws of Nature and of Nature’s God, laws vindicated by the Declaration of Independence and, nearly a century later, by the revolutionary (that is, regime-changing) Civil War fought on behalf of those principles and the people who adhered to them. It remains for American citizens to live in the structure the Founders designed by respecting its features, a respect that can only be maintained by what one Founder called “a moral and religious people”—which is to say, a people who perpetuate the American effort at self-government in their private, civil, and political lives.

The following essay was first published by Real Clear Politics as a part of their “1776” series, in February 2020.

 

In declaring their independence from Great Britain, Americans famously asserted their unalienable rights. Much less conspicuously, but no less tellingly, they listed ten moral virtues and duties consonant with those rights.

In announcing their political separation from the Empire, they begin by acknowledging a duty to observe “a decent respect of the opinions of mankind” by stating the causes for their decision. “Decent” means fitting, appropriate; the opinions of mankind are fittingly respected because human beings are by nature social, equipped with the capacity for understanding one another, for giving reasons for their conduct. Any important public action entails the duty to explain oneself, to justify the action before the bar of reasoning men and women.

To justify oneself, in turn, requires Americans to state their standard of justice. That standard is unalienable natural rights, including life, liberty, and the pursuit of happiness. Justice numbers among the four cardinal classical virtues, defined and elaborated by Plato, Cicero, and other philosophers well known to the Declaration’s signers. Just conduct consists of actions defending natural rights in a civil society; to assert those rights, to separate oneself from those who would violate them, logically entails respecting those rights in all other persons, inasmuch as “all men are created equal,” all equally entitled to enjoy their natural rights undisturbed by tyrants.

Governments that secure such rights are established by the consent of the governed. This means that consent cannot mean mere assent or willingness. It can only mean reasoned assent. Reasoned assent to natural right implies a modest degree of another classical virtue, wisdom. In this case, it is what Aristotle calls ‘theoretical’ wisdom, understanding general or abstract principles. Americans recognize their duty to understand what human nature is—not only the ‘nature’ (really the character, including the habits of mind and heart) of Americans, or the English, or the French, but of human beings as such.

Aristotle identifies a second kind of wisdom: practical or prudential wisdom, the ability to figure out commonsense ways to secure the rights of human nature established in theory. ‘Prudence,’ the Declaration states, “will dictate that Governments long established should not be changed for light and transient causes.” Long-established governments have lasted for some good reasons; they have stood the test of experience, of practice, Much of the Declaration of Independence is given over to showing why the causes for which the signers owe mankind an enumeration are not light and transient. They are profound and long-lasting, and to fail to foresee their likely results would be to fail to exercise the virtue of prudence.

Closely related to prudence is a third classical virtue, moderation. Like all of mankind, Americans have exhibited patience in enduring “sufferable” evils as subjects of the British Empire. Only “a long train of abuses” revealing an intention by the regime of that empire to “reduce them under an absolute Despotism” gives them not only the right but also the duty to “throw off” that regime, sever themselves from that empire, and concomitantly to frame a new order that will secure their natural rights. Both prudence and moderation justify a right to revolution and, simultaneously, the duty to found a regime that will work better in practice.

The fourth classical virtue is courage. Without it, wisdom, justice, and moderation by themselves will leave you high and dry. As a baseball manager once said of a rival, “Nice guys finish last.” Accordingly, Americans announce their intention to defend their rights with “manly firmness.” It should be noted that manliness in their minds had no ‘gender.’ Abigail Adams was no less “manly” in her firmness than her husband, John. He knew that and he said it. Looking back on the American Revolution, he wrote that those were times that tried women’s souls as well as those of men, and that American women had exhibited no less courage than their husbands and sons. Several decades later, gallant Tocqueville went so far as to say that America owed much of its success in self-government to “the superiority of her women” to those seen in European ballrooms and salons, where the sterner virtues had gone out of fashion.

The virtue of civility treats naturally equal human beings as equal citizens in a regime designed to give every citizen representation in government—government by consent. The Signers held up the virtue of civility against barbarism, by which they didn’t mean primitiveness. They mean Machiavellianism, the intention to rule by force and fraud or, in their own words, cruelty and perfidy. By this standard, the English monarch’s policies regarding the American colonies were barbaric, however ‘civilized’ his pomp and circumstance may have made him seem. Aristotle understands human nature to be not only rational but also political or civil. By ‘political’ he means the capacity to rule and be ruled in turn, as good husbands and wives do in a justly ordered household, and as citizens do among themselves. Political or civil rule contrasts with parental rule—rule over children for ‘their own good.’ The civic equivalent of this would be kingship, one-man or one-woman rule for the good of the subjects, often described as the ‘children’ of the monarch. Political or civil rule also contrasts with the rule of masters over slaves, which is established, Aristotle observes, for the good of the aster, not the slave. The virtue of civility treats naturally equal human beings as equal citizens in a regime designed to give every citizen representation in government—government by consent. Civility animates the regime of republicanism, which will replace British tyranny.

Americans also esteem a virtue less classical than Biblical: humility. They have petitioned the British monarch in “humble terms.” The Bible teaches that humility is a virtue because, when God created all men equal in their humanity, He created them equal before God, and under God. In Hebrew, the word for humility, anav, appears frequently in association with the greatest of all Israelite founders, Moses, the great lawgiver. Moses’s humility enables him to bring forth the Ten Commandments not as his own laws, products of his own wisdom, but as God’s laws. In describing their right to independence as established by the laws of Nature and of Nature’s God, the Signers of the Declaration show a similar humility. They do not strut proudly before mankind as ‘exceptional’ Americans. They announce their intention to claim their rights on the foundation of laws seen in the nature created by God. They are not divine creators but human receivers of God’s gifts.

While petitioning the monarch in humble terms, they also appeal to the “magnanimity” of the “British brethren,” the people of Great Britain. Magnanimity—literally, greatness of soul—crowns and epitomizes the classical virtues. Aristotle describes the magnanimous man as one whose soul is big enough to endure the rigors of political life without resentment, without the petty retaliation exercised by men of micropsychia, smallness of soul. The Americans see that their action will take the British people by surprise. Britain’s mighty empire, a source of understandable national pride, will be diminished. Having given up on showing humility before the king—humility isn’t groveling—Americans ask from his people nothing less than greatness of soul. They can demand no less from themselves, as well, and accordingly hold the British people “enemies in War” but “in Peace friends.” They see that a war of independence will provoke angry passions in their own hearts against that people, even as they now feel such passions against King George and the British parliament. They vow to greet former battlefield enemies with magnanimity, once peace has been restored.    It has never been simply the case that Biblical humility and classical magnanimity comport easily with one another. The signers of the Declaration of Independence pair them. They can do so because they understand humility as a virtue attendant to due deference—in civil society, to a monarch insofar as he adheres to the laws of Nature and of Nature’s God, in civil society and in nature to God and His laws, to be obeyed by peoples and monarchs, commoners and aristocrats alike.

Finally, to one another the Americans pledge “our sacred Honor.” If Americans owe a decent respect to the opinions of mankind, they owe honor to one another, loyalty in a great and good shared action, namely, the establishment of just self-government in their country. They will not betray one another. They will respect the opinions of others but in this task each will deserve the good opinion of his countrymen.                                

“First in war, first in peace, first in the hearts of his countrymen.” George Washington served as the exemplary Americans to Americans. First in war, he showed courage on the battlefield, and civic courage, after the war, when he faced down a nascent military coup. First in peace, he showed a decent respect for mankind in his Farewell Address, avoiding military alliances in Europe (then a cauldron of war), and leading his countrymen to a constitution designed to secure justice for all American citizens. He proved to them that he possessed the wisdom to establish government by consent. And he won first place in the hearts of his countrymen with his unflagging civility, his humility in reprehending any suggestion that he made a monarch, a temptation King George never though he could resist. Perhaps above all, in his greatness of soul and sense of honor—’aristocratic’ virtues he humbly placed in the service of the republicanism Americans had fought for, and won, he proved that goodness strengthens a great man’s greatness.                                                                                                                                                                    

In all this, Washington became a living embodiment of the principles of the Declaration of Independence, their foremost practitioner, and the example for Americans of the virtues Americans esteemed. Throughout the soul-trials of regime change in war and regime-building in peace, Washington and his fellow Americans never considered these virtues uniquely American, but rather as the shared patrimony of all human beings, under the laws of Nature and of Nature’s God.