In about three weeks, we will once again be celebrating the Fourth of July, America’s Independence Day. But what are we really celebrating? For all too many Americans, the Fourth of July is just another summer holiday, albeit one with fireworks. Of course, most Americans dimly recollect that it was on this day, sometime in the distant past, that Americans declared their independence from Great Britain. But they seldom stop to reflect on the true revolution that the Fourth of July signifies: the Declaration of Independence and the creation of a nation based on a universal idea. As Alexander Hamilton put it in the Federalist, the United States had the opportunity to establish a government founded on “reflection and choice” rather than on “accident and force.”
The Declaration of Independence claimed to derive its authority from certain “self-evident” truths. Do we still believe in them? Do we still believe, as the Declaration maintains, that nature, including human nature, is accessible to human reason? That human reason can ascertain the “Laws of Nature and of Nature’s God” and certain self-evident truths, e.g. “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.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . .”?
For the founders, the Constitution was designed to provide the framework for the kind of government envisioned by the Declaration: a republic or commonwealth intended to protect the natural rights of its citizens. The link between the Declaration of Independence and the Constitution was nicely captured by Abraham Lincoln in a fragment he most likely composed in the winter of 1861, shortly before his inauguration. Contemplating the nature of the Union and the Constitution in the face of the secession crisis, Lincoln argued the Constitution is principally a framework for sharing power within a republican government. He contended that this was the real thing to be preserved, because only republican government is capable of protecting the rights and liberties of the people. But Lincoln also saw the Declaration of Independence as the foundation of such a government, and the Constitution as the means of implementing it.
In this fragment, Lincoln observes that as important as the Constitution and Union may be, there is “something back of these, entwining itself more closely about the human heart. That something, is the principle of ‘Liberty to all’” as expressed in the Declaration. With or without the Declaration, Lincoln continues, the United States could have declared independence, but “without it, we could not, I think, have secured our free government, and consequent prosperity.”
Using as his text Proverbs 25:11, “A word fitly spoken is like apples of gold in frames of silver,” Lincoln argues that the Declaration’s principle of liberty, a “word ‘fitly spoken,’ . . . has proved an ‘apple of gold’ to us. The Union and the Constitution, are the picture of silver, subsequently framed around it,” not to conceal or destroy the apple “but to adorn, and preserve it. The picture was made for the apple-not the apple for the picture. So let us act, that neither picture, [n]or apple, shall ever be blurred, or broken.”
As the late Walter Berns once wrote, laws in the United States derive
from a constitution that is related to the Declaration of Independence as effect is related to cause, and the Declaration, the cause, is a political statement of a philosophical teaching concerning the nature of man, Providence, and nature itself. In it we learn that nature’s God endows all men with the rights of life, liberty, and the pursuit of happiness, and that government is instituted to secure these rights. That the Constitution was understood by its framers to have as its purpose the establishment of such a government there can be little doubt.
So the founding generation, as well as Lincoln, saw the Constitution as the means for implementing a certain type of government, a republic based on the equality and consent of a self-governing people. In what respect are we equal under the Constitution? Only in our natural rights, which the Constitution is intended to protect. A corollary holds that all human beings are equal in the sense that no one person may govern another without the latter’s consent.
As noted above, the Declaration of Independence maintains that nature, including human nature, is accessible to human reason, which can ascertain our natural rights. To secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
But as James Madison noted in Federalist 51, because men are not angels, government requires certain “devices” to control potential abuses. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Thus while the founders’ Constitution is based on mutual trust among fellow citizens, it embodies a deep distrust of those who hold power.
One of the most important devices for controlling the abuses of government is the separation of powers. As Madison notes in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”
Thus for the founders, a successful republic required not only virtuous citizens and broad civic trust but also mechanisms to prevent government abuse. This was simply prudent. While they hoped that enlightened public-minded men would govern, they also realized that it was necessary to have a government architecture that would minimize the damage in the event that less enlightened and public minded individuals rose to power.
So to reiterate: the political philosophy of the American republic is to be found in the Declaration of Independence. The architecture for implementing that political philosophy is the Constitution. Paraphrasing Lincoln, the “apple of gold” is the Declaration. The “picture of silver” is the Constitution. The latter exists to “adorn and preserve” the former.
Clearly this is not the situation that prevails today. Our presumed governors have cast aside the apple of gold and abuse the frame of silver at will. Unfortunately, what was created as a commonwealth has devolved into an oligarchy, rule by the few whose interests are at odds with those of the people at large. This ruling oligarchy includes not only unelected bureaucrats but also corporate leaders in tech, finance, and media, who establish rules from which they themselves are exempt. The result is the political crisis that we face today: a lawless executive, a Congress and Court complicit in this lawlessness, leading to an out of control federal government that makes a mockery of the idea of a self-governing people.
The change in our view of the relation between the Constitution and the Declaration is the result of the revolution in political thought effected by the Progressives in the latter part of the 19th and early part of the 20th centuries. Although many historians have treated the Progressives as merely a “good government” reform movement, the fact is that they essentially “re-founded” the American republic, transforming the basis of government from human nature and natural rights to “history” and “progress.” The Progressives asserted a new conception of man as a being who possesses no natural rights, but who does have potentially limitless material needs that must be provided by an administrative state ruled by “experts.”
Thus the Progressives effectively replaced liberty with “efficiency” and the concept of “rights” with prescriptive entitlements. While the Progressive movement is complicated and not always internally consistent, its fundamental “big idea” is that there is no such thing as the sort of unchanging truth claimed in the Declaration. Instead, all ideas arise from particular historical circumstances.
The era following the Civil War and Reconstruction essentially marked a return to the idea of limited government. But during this period, the “social question” began to arise: how was the American constitutional system to deal with the challenges of the post-war urban and industrial revolutions? While during the Civil War and Reconstruction, Lincoln and the Republicans adhered to the long tradition of Anglo-American constitutional principles that gave us both the Declaration and the Constitution, the Progressives—both intellectuals (e.g., Herbert Croly and John Dewey), imbued with the doctrine of progress arising from German political philosophy, and politicians, such as Theodore Roosevelt and Woodrow Wilson—abandoned those principles for a set of so-called modern ideas.
Above all others, Woodrow Wilson, both as an intellectual (he was a professor and the president of Princeton University) and later a politician, embodied the essence of the new political science, arguing that the Constitution was not up to the task of dealing with the complexities of 20th century American life. The Constitution, said the Progressives, was outdated and incompetent to deal with contemporary economic and social ills. If the Constitution was to be applied at all, they contended, it ought to be applied as a “living” document, modified to meet the changes of modern life.
While the founders created a republic based on natural law and natural right, the Progressives believed that there could be no abiding non-arbitrary standard of moral or political judgment, independent of human will. For the Progressives, government must evolve to meet the changing needs and must be guided by similarly evolving standards of right. Thus as the Progressive political scientist Charles Merriam put it in 1920, it is impossible “that any limit can be set to governmental activity.”
The touchstone of Wilson’s new political science was his 1912 campaign address, “What is Progress?” in which he attacked the Declaration of Independence and argued on behalf of replacing the political science of the founders with a new political science based on the evolutionary theory of Charles Darwin. Wilson also expressed frustration with, if not outright scorn for, the separation of powers. For Wilson, the checking-and-balancing function of the Constitution constituted a barrier that, for many decades, had prevented the national government from enacting the social and economic policies that Wilson and the Progressives had advocated.
Ignoring the other part of Madison’s argument for separating powers—energizing government through the clash of rival and opposite ambitions—the Progressives saw the Constitution’s separation of powers as an effort to enshrine legislative primacy. In the name of good government and efficiency, the Progressives sought to create a new constitutional order, with the president as its driving force.
Accordingly, Wilson and the Progressives reconceived the presidency itself. Wilson’s executive would overcome the original Constitution’s structural obstacle by rising above them. The means for doing so was party government, permitting the president to initiate a common policy agenda in order to breach the mere “parchment” barriers that divided the legislative and executive branches. As one Wilson scholar has observed:
The president would make the case for policy innovation directly to the people. Once armed with plebiscitary legitimacy, he might more easily prod an otherwise parochial Congress to address national needs. Madisonian fears about the mischiefs of faction would be overcome by separating politics and administration: Congress and the president would jointly settle upon the desired policy agenda, but its details, both in design and execution, would rely on non-partisan expert administrators’ special insight and technical skill, operating under the president’s general direction and control.
This reconceived presidency would also become the primary instrument of a new Constitution, one stripped of any foolish preoccupation with limited government.
In other words, executive power would grow in parallel with the growth of government in general. No longer would the president be seen as, at best, Congress’ co-equal or, at worst, the legislature’s frustrated servant. Instead, Wilson’s president would be a proactive government’s innovator-in-chief, one who understands the direction of historical forces but who unites this understanding with popular yearnings. For the Progressives, the president was to embody the will of the people.
The result of the Progressive’s revolution is an increasingly centralized and bureaucratized administrative state that expands relentlessly while increasing the dependence of the citizen-body on government. As Matthew Spalding has written, clients of the state are on the verge of becoming the majority faction that Madison feared as the greatest danger to free governments. Alexis de Tocqueville’s warnings about democratic despotism seem more and more prophetic, as an all-intrusive state reduces the people (in Tocqueville’s words) “to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.”
In conclusion, I cannot express the current crisis of constitutionalism any better than my friend John Marini of the University of Nevada at Reno. “A constitution,” he writes,
is meaningful only if its principles, which authorize government, are understood to be permanent and unchangeable, in contrast to the statute laws made by government that alter with circumstances and changing political requirements of each generation. If a written constitution is to have any meaning, it must have a rational or theoretical ground that distinguishes it from government. When the principles that establish the legitimacy of the constitution are understood to be changeable, are forgotten, or denied, the constitution can no longer impose limits on the power of government. In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals. When that transformation occurred, as it did in the 20th century, the sovereignty of the people, established by the Constitution, was replaced by the sovereignty of government, understood in terms of the modern concept of the rational or administrative State. It was a theoretical doctrine, the philosophy of history, that effected this transformation and established the intellectual and moral foundations of progressive politics.
Today, our choice is between republic and oligarchy. To recapture the former, let us recur to the truths of the Declaration of Independence as expressed by President Calvin Coolidge in a speech commemorating its 150th anniversary:
About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.
Otherwise, our crisis of constitutionalism and all its attendant woes will continue.