The American Polity

Essays On The Theory And Practice Of Constitutional Government

Edward J. Erler

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781317707592
• Edition: 1
• Topic: Education
• Subtopic: Education General

First Published in 1991. This is a collection of essays which address themselves to the American concern for constitutional government and its attendant political liberty. Against a backdrop of the current international movement towards establishing new governing orders, this work explains the principles of the American founding and the politics which established them and now flow from them.

Chapter One

Natural Right in the American Founding

This is why we do not permit a man to rule, but the law, because a man rules in his own interest, and becomes a tyrant; but the ruler is a guardian of justice, and if of justice, then of equality.

—Aristotle, Nicomachean Ethics, 1134a35–1134b2

Do not destroy that immortal emblem of Humanity—the American Declaration of Independence.

—Abraham Lincoln, 1858

The Constitution’s bicentennial in 1987 presented the natural occasion for reflection on the origins of the regime. Those who were closer to the origins understood better than we do today the primacy of first principles. In an early essay, “The Farmer Refuted,” published in 1774, Alexander Hamilton wrote that “When the first principles of civil society are violated, and the rights of a whole people are invaded, the common forms of municipal law are not to be regarded. Men may then betake themselves to the law of nature; and, if they but conform their actions, to that standard, all cavils against them, betray either ignorance or dishonesty.”¹ This statement linking first principles of civil society to natural law was not merely the product of Hamilton’s youthful enthusiasm.

In the same year, James Wilson argued in his “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament” that “the most effectual method of perpetuating the liberties of a state” is to insure that the constitution is “frequently renewed, and drawn back, as it were, to its first principles.”² Theophilus Parsons, in his highly influential Essex Result, published in 1778, expressed similar sentiments when he stated that “the want of fixed principles of government, and a stated regular recourse to them, have produced the dissolution of all states, whose constitutions have been transmitted to us by history.”³ This idea of a frequent recurrence to first principles also found expression in the Virginia Bill of Rights (1776) and the Massachusetts Bill of Rights (1780), both of which posit “a frequent recurrence to fundamental principles” as the indispensable means of preserving free government. In the closing days of the Constitutional Convention, Madison noted that the “people were in fact, the fountain of all power” and that they might resort to “first principles” in the alteration of constitutions. In response to Luther Martin’s rejoinder that it was dangerous to “resort to the people and to first principles,” Rufus King pointed out that Massachusetts—and by implication all the states—”must have contemplated a recurrence to first principles before they sent deputies to this Convention.”⁴

America is unique. The American Founding represents the first time in human history that a people attempted to constitute itself by dedication to a principle—the principle that “all men are created equal” and its necessary concomitant that all legitimate government must be derived from “the consent of the governed.” Tom Paine, the most powerful polemicist of the revolutionary period, wrote of America’s uniqueness in the Rights of Man:

The Independence of America, considered merely as a separation from England, would have been a mater but of little importance, had it not been accompanied by a revolution in the principles and practise of government. She made a stand, not for herself only, but for the world, and looked beyond the advantages herself could receive…. The revolutions which formerly took place in the world had nothing in them that interested the bulk of mankind. They extended only to a change of persons and measures, but not of principles, and rose or fell among the common transactions of the moment. What we now behold, may not improperly be called a counter-revolution.⁵

It may seem strange that Paine would characterize the American Revolution as a “counter-revolution.” What he meant, however, is obvious. The America Revolution was unique. It was not a revolution that exchanged one set of rulers for another, but contra all revolutions that had heretofore transpired, it enshrined universal principle as the moving force of legitimate government. For the first time in history, reason or principle and not unfettered human will was to be the ultimate ground of political justice.

Perhaps no one—certainly no politician—has understood the character of the American Founding better than Abraham Lincoln, who, echoing Paine, wrote in 1859:

All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that today and in all coming days, it shall be a rebuke and a stumbling block to the very harbingers of reappearing tyranny and oppression.⁶

As a “merely” revolutionary document, the Declaration, according to Lincoln, was unexceptional. What is truly exceptional is the fact that Jefferson sought to form the horizons of a particular political community from the “material” of the “abstract” or universal principle that “all men are created equal.” This “abstract truth” is said, in the Declaration, to derive from “the laws of nature and nature’s God.” It was this derivation that led Paine, in the American Crisis, to write that the denial of the “natural right to independence” was a “kind of atheism against nature.”⁷ There can be little doubt that the Framers of the Constitution regarded the Declaration as supplying the principles of the Constitution. Madison in The Federalist, for example, noted that the Constitution embodied the “fundamental principles of the revolution” and was derived from “the transcendent law of nature and of nature’s God.”⁸ Thus the Constitution, in Madison’s view, must be properly read in the light of the principles of the Declaration. The self-conscious purpose of the Framers was to put those principles into motion through the instrument of constitutional government, a government that would have as its central purpose the equal protection of the laws understood as the equal protection of equal rights.

Today our most immediate access to regime principles is through the equal protection clause of the Fourteenth Amendment. Any consideration of equal protection ineluctably leads to a consideration of the principle of equality itself. And, if Chief Justice Rehnquist is correct—as I am convinced that he is—in characterizing the Supreme Court’s equal protection decisions as “a series of conclusions unsupported by any central guiding principle,”⁹ then we are presented with a matter of some urgency. There is little doubt that equal protection of the laws is the central tenet of constitutional government. Indeed, the framers of the Fourteenth Amendment often described their handiwork as declarative of the central principles of the Constitution itself.¹⁰ All civil liberties are traceable to this basic constitutional precept. As a constitutional precept, equal protection derives its dignity from the fact that it is the conventional reflection of principles that flow directly from natural human equality. Most of those who debated the Fourteenth Amendment knew they were engaged in a far-ranging debate about the fundamental principles of the Constitution. Indeed, the Reconstruction amendments must be viewed, in some sense, as an attempt to complete the regime of the Founding.

The regime of the Founders was incomplete because it had allowed the continued existence of slavery. The Constitution was, therefore, an imperfect expression of those principles enunciated in the Declaration of Independence, particularly the injunction that the moving principle of legitimate government was the “consent of the governed.” The incompleteness of the Constitution was, of course, dictated by political necessity. A more radical position on the question of slavery would surely have spelled the defeat of the Constitution. Under the pressing circumstances, the best the Founders could accomplish was to create an instrument of government that, although tolerating slavery, nevertheless put slavery on what Lincoln rightly termed “the road to ultimate extinction.” Lincoln explained in June 1857 that the authors of the Declaration

did not mean to assert the obvious untruth, that all men were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no such power to confer such a boon. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.¹¹

This view was the one that animated the debate in Congress over the passage of the Fourteenth Amendment. The remarks of Representative Newell before the House on February 15, 1866, are not atypical. He noted that the Declaration was the “living principle” of the Constitution that provided it with “meaning” and an “independence.” Speaking of the Framers of the Constitution, Newell remarked that

the combined wisdom of these patriotic men produced our present Constitution. It is a noble monument to their ability; but unfortunately, like all human instruments, it was imperfectly constructed, not because the theory was wrong, but because of the existence in the country of an institution so contrary to the genius of free government, and to the very principles upon which the Constitution itself was founded, that it was impossible to incorporate it into the organic law so that the latter could be preserved free from its contaminating influence.¹²

Newell agreed with Lincoln that the Framers of the Constitution had put slavery in the ultimate course of extinction. “The framers of the Constitution,” he noted,

did what they considered best under the circumstances. They made freedom the rule and slavery the exception in the organization of the Government. They declared in favor of the former in language the most emphatic and sublime in history, while they placed the latter, as they fondly hoped, in a position favorable for ultimate extinction.¹³

But, as Newell duly noted, the fond hope of the Framers had not been realized; indeed, slavery had become the rule and freedom the exception after the Kansas-Nebraska Act and the Dred Scott decision. The Civil War, according to Newell, was fought to restore the Declaration to its rightful place as providing the authoritative principles of republican government.

And so this Constitution of our fathers, because of the existence of an element foreign to its genius and principles, flatly subversive of the ideas on which it was founded, and which gave the lie direct to its declaration of rights, was in such danger of utter destruction that the patriotic people of the nation found themselves compelled to abandon it altogether as the aegis of their liberty and safety or take up arms in its defense.¹⁴

Thaddeus Stevens, the leading Radical Republican, made this exact same point in a speech urging adoption of the Fourteenth Amendment before the House on May 8, 1866:

It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.¹⁵

These invocations of the Declaration as providing the guiding principles for the Fourteenth Amendment were by no means isolated ones.¹⁶ Representative Miller, for example, stated in debate before the House on May 9, 1866, that the first section of the Fourteenth Amendment was “so clearly within the spirit of the Declaration of Independence of the 4th of July, 1776, that no member of this House can seriously object to it.” Indeed, references to the Declaration as “organic law” were so frequent throughout the debates that it can hardly be doubted that the Reconstruction Congress was self-consciously engaged in an attempt to restore the Declaration as the authoritative statement of the principles of the regime.¹⁷ As Thomas Grey has written,

the natural-rights constitutional theory, built around the concepts of due process, of national citizenship and its rights, and of the human equality proclaimed in the Declaration of Independence … was the formative theory underlying the due process, equal protection, and privileges and immunities clauses of the 14th Amendment.¹⁸

This is hardly surprising since the debate over the Fourteenth Amendment took place within the political horizons t...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Introduction
• Chapter 1. Natural Right in the American Founding
• Chapter 2. Majority Rule and the Public Good
• Chapter 3. The Constitution and the Separation of Powers
• Chapter 4. The Separation of Powers in the Administrative State
• Chapter 5. Equal Protection and Personal Rights: The Regime of the “Discrete and Insular Minority”
• Index
• About the Author