We the People
Thoughts on liberty in the Preamble's light
A More Perfect Union
Walter E. Williams
The ethnic, racial, and religious mosaic of our country carried all the potential for conflict. Yet while we as a country have made mistakes, the most notable of which is our heritage of slavery, there is nothing in our history that compares to the conflict resulting in the massive extermination of Armenians in Turkey, massacres of Chinese in Southeast Asia, Stalinization in Russia, Nazi extermination of Jews, the Protestant and Catholic conflict in Ireland, or more modern versions of the same story in Uganda, Cambodia, and Ethiopia.
Groups that readily kill one another in other parts of the world have found that they can live in relative harmony in the United States. Protestant and Catholic Irishmen battle one another in Ireland but live in peace here. The same is true of Jews and Germans, French Huguenots and French Catholics, and the Chinese and Japanese.
These various groups have lived together in relative harmony in America because for the most part it did not pay, politically, to be a Catholic or Protestant; it did not pay to be a German, a Turk, a Pole, a Japanese, or anybody else. Not that we were innocent of racism and intolerance—but there was very little political power to be distributed by race. For this we can thank the Founding Fathers.
When the Framers set out to "form a more perfect union," it is apparent they assumed that by their very nature humans are incapable of perfection and capable of doing great injustice. Were this not their vision of man, they might have spared themselves considerable controversy and debate by leaving us the Constitution's Preamble as the law of the land, perhaps amended by a commandment to the effect: "Congress and the President shall have all the necessary powers to accomplish these objectives."
Instead, the Framers had abundant evidence that humans cannot be trusted to govern wisely and justly. History has shown, and continues to show, that tyrants use constitutions as a means to further despotism and collective oppression of minorities. The specific enumeration of the duties of federal government laid out in the Articles of the Constitution thus reflected the Framers' idea that liberty requires limited government. Their immense distrust of government is apparent also in the tone of the language found in the Bill of Rights: "Congress shall make no law,…shall not be infringed,…the right of the people…nor shall be compelled…nor be deprived,…nor shall property be taken,…shall not be construed to deny or disparage."
Imagine a mortal dying and leaving this earth and, at his next destination, encountering a set of restraints bearing any resemblance to the U.S. Constitution. He would know for sure that he was in hell, for to find such a set of restraints on authority in heaven would be a gross affront to God. It would be the same as insinuating that God is not perfect and could not be trusted to do justice. That men and government cannot be so trusted was a realization uppermost in the Framers' minds as they set about their work.
Backed by English political tradition dating back to the Magna Carta of 1215, the Founding Fathers sought to promote the idea proclaimed in the Declaration of Independence 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." In short, the Constitution tries to perfect the union and establish justice by laying out a set of rights and responsibilities held simultaneously by all citizens—the rules of the game. Questions of justice were to be answered constitutionally by determining whether a government or private party encroached on a constitutionally protected right, privilege, or immunity of another.
To "form a more perfect union" and "establish justice" calls for a simultaneous solution; in order to have the one we must have the other. A social compact providing for Americans to live in peace with one another requires fundamental constitutional law that is flexible enough to meet technical, political, economic, and social changes yet permanent, rigid, and unyielding in its goal of protecting individual liberty.
The Framers saw justice in the game of life, as in any other game, as determined by the presence and enforcement of neutral rules. Government's job was to referee, to detect violations and enforce the social compact laid out in the Constitution (game rules). Clearly, it is illegitimate for government to actually play the game or to choose a side. Therefore, in the eyes of the Framers, justice must be evaluated as a process and not as a result. At the minimum justice requires rule by legis (Latin for "law"), not rule by privilegium (Latin for "privileges," or "private law") where a person's status determines how he is treated before the law.
The government as referee, until recently, has worked out fairly well. Some evidence is the kind of wealth we have generated as a free people pursuing our private interests. But just as important is the internal conflict that we have avoided but that has plagued so much of the world.
Not only did the Framers' rules of the game leave little to be gained through racial and ethnic grouping, but the significant role of the market in the allocation of resources eliminated the need for consensus among diverse peoples and cultures. When there is government allocation of resources, a political majority must reach some sort of consensus, which always comes at the expense of the political minority.
When schooling is publicly produced, for example, a political decision must be made whether prayers will be allowed or not. Whatever the decision, it generates losers—some people, who are forced to pay for the service, will not have their preferences fulfilled. If those preferences differ systematically by race, ethnicity, or religion, the grounds for conflict are then laid along racial, ethnic, or religious lines.
By contrast, market allocation of resources accommodates diversity because each participant can get some of what he wants and does not have to pay for what he does not want. Moreover, market allocation reduces the need for a consensus. For example, people have a broad and diverse of set of preferences for clothing—but this diversity produces little conflict. The person who prefers three-piece suits simply purchases what he wants, while the person who prefers jeans does the same. Consider the conflict that could arise if, in our diverse society, choice of clothing were to require a collective decision like that in education. Market allocation permits people with diverse preferences to live in peace with one another.
Government allocation of resources raises the potential for conflict because it is a zero-sum (possibly even negative-sum) game where one person's or group's preferences can be realized only at the expense of another's. Market allocation of resources is a positive-sum game: both parties to transactions consider themselves better off.
Limited government, and thus a greater potential for market allocation of resources, not only helps to realize the Framers' dream of "a more perfect union," it also helps "establish justice." The Framers recognized that, as Thomas Paine eloquently stated, "Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries by a government, which we might expect in a country without government, our calamities are heightened by reflecting that we furnish the means by which we suffer."
Unfortunately, today's political leadership, consisting for the most part of quacks, charlatans, and hustlers, lack the wisdom and moral courage of our Founding Fathers. They are thus diligently providing us the means for suffering.
Contributing Editor Walter E. Williams is the John M. Olin Distinguished Professor of Economics at George Mason University. His new book is All It Takes Is Guts.
Richard A. Epstein
The Preamble of our Constitution is perhaps the greatest single sentence of political rhetoric ever written. Its first three words, "We the people," projects a confident vision of unanimous and solemn purpose that helped lift up a divided and fledgling nation by its bootstraps. The remainder of the Preamble then lists a set of objects to which our national energies should be directed.
It is at this point that the Preamble speaks with two voices. Some of its great ends anticipate explicit provisions contained in the body of the Constitution. The reference to the common defense, for example, is made good by the grants of power to Congress to raise armies, maintain a navy, and call the state militia into federal service to repel external invasions, suppress insurrections, and enforce the laws of the union.
At other places, however, the Preamble works by indirection. To "establish justice" is one of the loftiest aims to which any nation can aspire, so one should expect to find in the Constitution a detailed blueprint of what justice itself demands. Yet the word justice is not found in the text of the original Constitution nor in the various substantive and procedural provisions contained in the Bill of Rights and subsequent constitutional amendments.
Suppose, however, that the Framers had decided to attack the question of justice head on. What should they have done? A general provision demanding that the Congress pass only just laws would have been worse than useless; it would imply some conception of justice limiting the power of Congress but would give no discernible account of how it might be applied by the Congress or president or enforced and interpreted by any court. Sometimes it is worse to try and to fail than to never try at all.
Nonetheless, it does not follow that the Constitution, even without the Bill of Rights, contains no provisions that bear on the question of justice. The Constitution works as a great instrument of justice not through grand substantive abstractions but through procedural protections that increase the likelihood of just laws being passed.
To see why this is the case, consider what kinds of individuals we the people will invest with political power. If we assume that public officials have matchless benevolence and boundless knowledge, then it matters little how we distribute power within government. Indeed, instead of incurring the substantial costs of setting up complex systems of power, we should ensure that all power flows to the central authorities, whom we can trust as a matter of course to do the right thing. Our goal should be to reduce the administrative costs of decision making, confident that everything else will thereafter follow a benign direction.
The presumptions about governmental structure, however, are quickly reversed once we change our assumptions about human nature. Thus, suppose we assume, as I believe it to be the case, that the persons who take the reins of power are no better or worse on average than the lot of ordinary individuals who elect them: some will be good and others bad. Now the fear is that periods of bad rule will result in a usurpation of power so that virtuous people will never again be able to assume positions of authority within the state.
Given this as the abiding fear, then our paramount task in devising a constitution is to divide the power into constituent parts and to create structures that make it difficult for any small group of individuals, let alone any single person, to take the mantle of power. Of these concerns were born the key architectural provisions of the Constitution: separation of powers with its system of checks and balances, and federalism with its doctrine of enumerated powers, which limited the jurisdiction of the federal government to certain specific tasks of national importance.
Viewed in this way the original Constitution displays a unity of vision that in large measure accounts for its success and durability. Most constitutional provisions follow and implement appropriate procedures for getting to just outcomes through the combined force of legislative, executive, and judicial power. Modern theories of contractarian justice, whether associated with John Rawls on the left or James Buchanan on the right, focus their attention on the set of procedures necessary to generate particular outcomes, not on the outcomes themselves. The framers of the original Constitution were themselves early adherents of this general outlook on life.
The Constitution, then, represents a sustained and careful effort to finesse the general question of what particular rules are needed to establish justice. The question is whether a Constitution so drafted could make good on the promise of the Preamble by its principles of separation of powers and federalism alone.
In a sense, we the people have never tried that experiment, because we feared the outcome would be negative. During the ratification debates, it became clear that the Constitution would be rejected if no provision were made for the speedy inclusion of a Bill of Rights, to operate as a substantive limitation against the power of the federal government.
To establish justice, it seemed, required more than the articulation of structural and procedural safeguards. Yet note that here, too, the drafters of the Bill of Rights did not regard it as sufficient to require Congress to "establish justice," as the Preamble requires. Instead, the genius of the Bill of Rights is that it adopts a set of principles with explicit substantive content that embodies the principles of a just society. It is clear, moreover, that the Bill of Rights does not equate establishing justice with the formation of large aggregations of government power, with explicit public directives about the proper distribution of wealth, or with exhortations that citizens have a wide range of positive duties one toward another.
Instead, the Bill of Rights is directed toward limitations on the power of the national government. Its key provisions speak of life, liberty, and property just as ordinary people would regard them, as rights that are designed to ensure for each person security and autonomy against government intrusion. These rights to liberty and property are so defined that their enjoyment is consistent with their like enjoyment by all other persons simultaneously. And these rights are conducive to the development of individual creative talents, which can be sustained and nourished by a strong network of voluntary associations.
To be sure, the Bill of Rights does not envision no place for government. Persons can be deprived of life, liberty, and property, but only with due process of law. Private property can be taken for public use upon payment of just compensation. But the emphasis is always on the use of government to support individual liberty and private property and not to subvert them.
Have the constitutional principles designed to "establish justice" been upheld? The record is mixed.
Many of the structural limitations have had sufficient clarity to withstand the pressures and poundings of two centuries of political and social conflict. Much of the Bill of Rights, such as the protections of freedom of speech and the prohibitions against unreasonable searches and seizures, are generally in good shape, notwithstanding some inevitable anomalies in the case law.
Other features of the Constitution have not fared so well, however. The rise of independent administrative agencies, for example, is not provided for in the original Constitution. The blessing that they have received from the Supreme Court has resulted in a concentration of power in the hands of elected officials, contrary to the principles of limited government.
Similarly, many of the substantive decisions of the Supreme Court have gone astray precisely because they have failed to respect the general protections of liberty and property set forward by the Bill of Rights. The infamous decision in Plessy v. Ferguson in 1896 announced a regime that allowed the government to require "separate but equal" public facilities for black and white persons—a result that could not possibly have been reached if the Court had begun its deliberations with the full awareness that the evils of faction always require sharp limitations on state power.
While we are well rid of Plessy, some of its lessons have not been fully learned. Current American constitutional law gives unquestioned power to federal and state governments to limit the disposition of both labor and property. The minimum wage, collective bargaining statutes, rent control laws, and the massive spate of retroactive statutes are routinely sustained under very extravagant interpretations of the state's "police power"—the power to regulate in the interests of "public health, safety, morals, and welfare."
This liberal extension of the police power turns the principles of limited government upside down. While the systems of regulating labor and property are far less pernicious than explicit racial segregation, they still give offense to our basic constitutional system and have resulted in severe diminutions of individual liberty and the prosperity it can bring.
It is often said that judicial review is a two-edged sword because it allows judges to do evil as well as good. No one could deny that judges exceed their proper power when they follow a private political agenda that is nowhere found in the Constitution. If the Constitution only contained a provision to "establish justice," then it might be understandable why today's courts and legislatures have gone so far astray.
But our Constitution did far better than this. It contained and articulated a particular conception of justice that rests on the protection of private property and individual liberty. Where the Supreme Court has followed these principles in dealing with legislation, as it has of late with racial segregation, then it has been on firm ground. Where it has deviated from them, as with economic liberties, it has permitted this nation to go astray.
It would be nice if we could avoid the difficulties of judicial mischief by following a simple principle of judicial restraint. But the Constitution does not allow so simple an escape or so tempting a shortcut in its effort to establish justice. That business requires all public officials, including judges, to understand the permanent and sound principles of government on which our Constitution rests.
Richard A. Epstein, the author of Takings, is James Parker Hall Professor of Law at the University of Chicago.
Insure Domestic Tranquillity
Domestic tranquillity cannot be insured—by any system, anywhere, anyway. Domestic tranquillity can be imposed, at least for a time, if there is some group with enough brute force to stomp anyone who seems discontented. Tranquillity, when imposed, is the ultimate totalitarianism.
Domestic tranquillity can, however, be arranged, its characteristics can be agreed to. Politically, such a tranquillity would be voluntarism. Socially, it would be neighborliness.
Historically, there is a crucial tension between imposition and arrangement, between coercion and agreement, between institutionally defined citizenship and ad hoc neighborliness. The degree to which a social area (such as a nation state or any of its political subdivisions) moves toward or away from one of those polar positions is more or less precisely the definition of the society itself (free society, welfare state, command society, dictatorship, totalitarian state).
Consider the modern definition of a citizen, the person generally accorded highest marks for being a tranquil, proper member of society. The citizen has become merely a voter, at best. In relatively open and free societies, such as ours in the United States, this has come to mean that every several years a minority of the residents in the social-political area can select, from a list prepared by an even smaller minority, people who are casually and constantly referred to as "leaders."
The fully voiced notion of the citizen-as-voter proposition is simply that some people (marked off by their zeal to lead) are, in fact, not only fit to lead but actually needed to lead the mass of people who presumably would flounder and founder without this leadership. The role of the leader is to "insure" domestic tranquillity, which is seen to mean to insure the provision of any and all entitlements that will, in fact, make people happy (that is, tranquil). Extraordinary.
In all such arrangements of tranquillity there is a hitch. Those things that, when provided, are expected to make people tranquil are in fact things that must be extracted from some people in order to provide them to other people. One's gain is paid for by someone else's loss. And it all depends on the use of official force, which has proven intractably difficult to restrain even in the best of societies (that is, ours!).
An agreement for domestic tranquillity, on the other hand, would focus on those areas and on those ranges of arrangement with which people voluntarily could and would associate themselves.
At the largest organizational level, that of continental defense, the local voluntary militia is the arrangement of agreement; the federal defense force, paid for by compulsory taxes and occasionally conscript service, is the arrangement of compulsion. In the militia, those genuinely concerned about defense prove it by voluntarily serving. They not only contribute their time but also voluntarily finance their own arms. This sounds merely fanciful, of course, given current levels of defense spending; less so given the untapped potential of people free to innovate defense systems on the basis of the best available technologies rather than entrenched, familiar ones. Also, it seems ironic to argue that free people simply can't afford to defend themselves and remain fully free at the same time.
If the Swiss example, of compelled but absolutely universal military training, is viewed as a positive answer in favor of both compulsion and universality, the very scale of the matter must be considered. The entire country has roughly the same population as Chicago. Universal military service is now as much a part of the culture as of the law. It involves service, in effect, in your own neighborhood. And thus it could be argued, finally, that even if the system became voluntary it still would work, because it is in fact based in neighborliness.
In our own time it appears that the volunteer military force has led to greater tranquillity in such matters than during times of conscription. But, alas, the appearance is false. The U.S. military operation is now about the third-largest socialist organization on the face of the earth. Its active personnel are, indeed, volunteers. But the millions of conscripted taxpayers, whose property is systematically drafted to keep the Pentagon in the manner to which it has become accustomed, are certainly affected in ways which do not conduce to their own individual tranquillity. It is a knotty and knotted matter.
In all matters of domestic tranquillity, there currently is a woeful lack of public debate. What passes for debate is, instead, simply arguments about how best to finance whatever system is now in place. Even Ronald Reagan's vaunted promises to do otherwise have resulted simply in more money to many of the very social arrangements that he originally promised to abolish altogether.
The matter of domestic tranquillity has become simply a matter of the pacification of voting blocs. Alternatives to existing arrangements are shunned.
It cannot go on forever, however, since there is interesting competition now arising in what is actually the most vital sector of society, in the management of productive private activities. There, many managements are abandoning the central authority, hierarchical model (the model of the command economy) and are moving toward a more fluid process in which individual creativity is encouraged over "following policy," and participation in decisions is favored over blind obedience.
The dynamic newcomers, in companies as diverse as Cray computers and Dayton Hudson stores, seem to see leadership as a matter of inspiring talent, creativity, and risk taking. Leadership is not, that is, a matter of formal authority, the model which remains the political paradigm.
Although companies with fluid management forms may seem anything but tranquil—with their hustling, bustling internal entrepreneurship—they are tranquil in one decisive way. They have tranquilized the ancient, dreadful hunger for power for power's sake by substituting the satisfactions and sorts of power that come from meritorious human accomplishment rather than brute conquest.
What does that mean for our neighborhoods, for our purely "domestic" tranquillity? I believe that it means at least the possibility of a renaissance of individualistic ideas of self-reliance, of local cooperation as opposed to national compulsion, of decentralization as opposed to aggrandizing centralization.
Actual free-trade zones, stripped of politically controlled zoning and regulations, would be an example. Voluntary real estate covenants are a venerable example. Self-contained and self-governed condominium or other communities. Schooling as the completely voluntary activity of consenting individuals. Consenting community rather than absentee legislative decisions about medical, religious, police, sexual, and property arrangements.
The "agree" version of domestic tranquillity means that such an issue as crime, now said to be a national problem and thus susceptible only to national answers (Reagan's "war" on drugs), could be approached as wholly local in nature. One locality might agree to the most draconian approach, such as fully armed residents with an agreement to shoot intruders. Another might throw away its locks and depend on sweetness and light to pacify intruders. One might agree that drugs are fine; another might make them a killing offense. And so forth.
The homeless, who constitute another nationally popular issue, might be welcomed in a neighborhood of compassion, forbidden to enter another neighborhood. Without restrictive building and other such codes, they might even have a shot at having their own neighborhood in unclaimed or unused areas—such as the shantytowns of Hong Kong or Bogota. Charity might guide one neighborhood, tithing another, absolute indifference another. But at least, for every problem, there would be an opportunity to view it in terms of specific locality and social mood, practicality, and resources.
Variety, which we so encourage in virtually every part of life we find attractive and interesting, should not be ignored in social matters. The gray sameness and now obvious failures of every socialist state on earth should be warning enough of what happens when tranquillity is stamped downward upon people rather than percolating upward from social variety and choice. The 19th-century French anarchist journalist Pierre Joseph Proudhon suggested that "order is the daughter of and not the mother of liberty." It is certainly appropriate to ponder that today when so many politicians insist that only greater state central authority can restore order to our streets and to our economy.
Only when matters of domestic tranquillity can be defined by and subsequently maintained by local, volitional action can that tranquillity be insured or, more accurately, assured. Imposed order is the tranquillity of the prison, not of a free society. The imposed order of the command economy has not fostered human happiness and creativity in any authoritarian state on the face of the earth.
It is obvious that any movement, today, toward a domestic tranquillity of agreement and not coercion will evolve within the framework of the nation state, a new world taking shape in the shell of the old. The tools are certainly in place. All of our modern technology moves steadily toward decentralization and miniaturization. A cybernated machine shop is a good example, a "mini" steel mill another. The profitability and high yield of small, intensive farms is another. Genetic engineering, with its almost tiny microbial factories and with gene splicers falling in cost almost as rapidly as computers, is another. And now the manipulation of materials at the atomic level is on the horizon with so-called nanotechnology.
Even war making has moved impressively to the decentralized and miniaturized technologies of terrorism, against which a good, high-tech private detective agency might be a better defense than the gigantic military establishments of the nation state. Against all of that, the mammoth state's claim to be the best guarantor of tranquillity seems obsolescent. The claims of the benefits of scale in government are certainly under question everywhere as localism and privatization become more interesting and technically feasible.
Who knows what the exact shape of an evolving free society, evolving past even the American experience that is so clearly the best so far—who knows what the social shape of the future will be? One has preferences, mainly, not sure predictions. But people free to make and to market—goods and culture—seem to me the best bet of all for a tranquillity that is both assured and profoundly domestic.
Karl Hess is a West Virginia welder and computer buff and the author of Capitalism for Kids.
Provide for the Common Defense
Of all faces of the present age in America, the military would doubtless most astonish any returned Framers. It vastly exceeds in scope, domestic and international, anything that the authors of the Constitution could easily assimilate. After all, the Constitution, as may be discerned at a glance, was never for a moment devised by its architects as the charter of a potential world empire. As a document it focuses on self-government at home, not on the government of other parts of the world.
We have nevertheless emerged from two world wars as an empire, and that truth is not reduced in the slightest by the fact that it is essentially a moral, or as I prefer here, moralistic empire. Whether the imperative is moral or economic, the infrastructure must be military—identifiable in dozens of bases, deployments, positioning of fleets and air bases, in many parts of the world.
America the moralistic empire was conceived during the Great War, the First World War, by the most morally driven human being ever to occupy the White House: Woodrow Wilson. It was Wilson's single-handed achievement to implant morally righteous ends in a war that until his momentous Fourteen Points was simply another war—if spectacularly larger than predecessors—of dynasties, empires, and realpolitik.
The sheer mass of the First World War and its iron consequences will always boggle the student. Some 12 million soldiers, along with around 8 million civilians, lost their lives. Between 20 and 25 million were wounded. The devastation of property may be surmised from the fact that it was largely a trench and artillery war, and the trenches stretched from the Swiss border to the English Channel.
The consequences of the Great War are easily summarized:
1. The Seventy-Five Years War, soon no doubt to become the second Hundred Years War in Western history.
2. The totalitarian state, first in Bolshevik, then Fascist, then Nazi forms, but remarkably uniform in structure.
3. Permanent terror in the world, its prey the civilian and soldier alike.
4. The Third World, or that part of it at least formed of the disjecta membra of the great empires that the First War commenced destroying.
5. A financial crisis in the Western, and thus entire, world that may not have reached its zenith even yet.
For America, the Great War really began in April 1917, more than two years after its beginning in Europe. Our losses of life and casualties generally were small by the hideous standards of the European slaughter. Not a hostile shot touched America, not so much as a proven spy reached her shores.
All the same, the impact of the Great War was the second most catastrophic event in the history of the American nation, the first being of course the Civil War. A rapid series of congressional statutes placed absolute control of government, economy, and even social structure in the hands of the president for the duration. In a matter of weeks America was transformed from the most decentralized and individualistic nation in the world to the most centralized state to be found among that war's combatant nations.
Railroads, mines, munitions factories, the whole communications network, including the Atlantic cable and Western Union, were nationalized. Production, distribution, labor, and food for civilian and military alike were completely under the president and a complex of national boards.
Intellectuals of every kind were commandeered for propaganda work against the enemy. Seventy thousand so-called Four Minute Men were mobilized, with license to enter any public meeting whatever to speak for about four minutes on patriotism. Several hundred thousand "neighborhood watchers" were also mobilized in the name of civil defense, their primary purpose that of listening for any "pro-German" or other disloyal remarks.
An Espionage Act was passed for the president by Congress in 1917 and a Sedition Act the following year, under which acts a substantial number of Americans were arraigned, indicted, or imprisoned for public remarks deemed inimical to the United States. The great labor leader Eugene Debs received a 10-year sentence for a public speech criticizing the Wilson government. A proposal to precensor newspapers was dropped reluctantly, but the postmaster general was authorized to inspect all newspapers and magazines sent through the mails and press criminal charges as required.
The blunt, and too rarely alluded to, fact is that for the duration of the war America was a war state. It was also, in the full sense, a total state.
Remarkably, the whole apparatus of the war state was dismantled within months after the Armistice in November 1918, although President Wilson's attorney general, A. Mitchell Palmer, conducted, with the president's apparent approval, dozens of raids during 1919, many without search warrants, upon offices and homes of suspected radicals, mostly new immigrants and oriented toward trade unionism. But while the actual machinery of the Wilson war state was taken down without delay, some powerful legacies were left, as events of the next quarter-century would make clear. One of these Wilson legacies is moralism in foreign policy.
Moralism is different from national interest, although the two may coincide in a given crisis. After Japan bombed Pearl Harbor in December 1941, it was in our national interest to go to war; at the same time American morality had every right to be offended by Japanese savagery in Asia and ruthless violation of international laws in many parts of the Pacific. Nevertheless, the purpose that underlay the Framers' decision "to provide for the common defense" differs substantially from anything that might conceivably be construed as moralism—as desire for the nation to be going about the world in order to lift peoples from apparent oppression and to plant seeds of American democracy.
I am limiting myself in that assertion to the intent of the Framers, as I deduce it from the Constitution and from contemporaneous sources such as the Federalist Papers. There is no question but that moralism of a sort grew up during the 19th century, a moralism that went with the conception of America as a redeemer-state whose ultimate goal after bringing a whole continent under American morality was to bring ever larger parts of the world. The American Religion that Tocqueville found so fascinating had no small amount of the fervor of Christianity itself in it—and also the dynamic of, say, "Onward Christian Soldiers."
But the moralism of the 19th century was nothing compared to the moralism of the American presidency under Wilson. Well before he reached the White House Wilson had undergone an ecstatic, born-again conversion from the Calvinism of his fathers to the Americanism that would henceforth animate his every political thought and light up his journey into the unknown darkness of the vast jungle of despotic, archaic, and imperialistic states that, in his imagination, occupied most of the rest of the world. Wilson made no secret whatever of his belief that the Allies in the European war were as guilty as the Central Powers in possession of colonies, trading interests, subjugation of native peoples, and the like.
Neutrality, strict and absolute, was Wilson's first preference. In it he was as impassioned, as moralistic, and as evangelical as he would be a couple of years later in his espousal of the Great Crusade. Neutrality made good sense; it reflected the national interest. But Wilson wouldn't, couldn't, leave it at that. Neutrality had to be proclaimed as the work of redemption for the world; as the sole means whereby at the end of the dreadful war going on in Europe, America would be in a position to commence its missionary work. There is such a thing, he said, as a man being too proud to fight.
But as Lord Devlin has shown in painstaking detail in his magisterial Too Proud to Fight, that same zeal in behalf of neutrality could be turned, almost overnight, to zeal in behalf of intervention, in behalf of a war—that-no matter what people like Lloyd George and Clemenceau thought the war was about—had as its purpose to make the world safe for democracy. And as Devlin puts the case so convincingly, it was when, and only when, Wilson became convinced that America's greatest opportunity to reform the world lay in participation in the war, not in neutrality, that he changed with such speed, though not without moralistic pawing of the air and clutching of the breast through the night before his April 2 address to Congress asking for a declaration of war. The same man who had moralized to the world the contretemps over eating clubs when he was president of Princeton, the same president who, in chasing Pancho Villa's bandits back over the Mexican border, had proclaimed an American service to the cause of all humanity, was ready by April 2, 1917, to moralize one of the most nakedly imperialistic wars in European history.
Thus the thrilling promise to make the world safe for democracy, thus the Fourteen Points, thus the fanatical insistence upon each jot and tittle of his own patented League of Nations. Moral, all moral, and therefore mandated to the American conscience.
We have had much of Wilsonianism ever since: In FDR's almost sedulous repetition of Wilson beginning with neutrality, then going to the Four Freedoms in January 1941 and to the Atlantic Charter in August of the same year—all, all, very familiar to the student of the American moral conscience. By the 1960s, Kennedy's promise to "pay any price, bear any burden, meet any hardship" would be routine stuff. So would Carter's insistence that the United States was the only nation in the world qualified for moral leadership. So would Reagan's Manichaean division of the world into the Good and the Evil empires.
It would be interesting, and also useful to the citizen, to be given a breakdown of our annual $300-billion—and rising—military budget into what is required for "the common defense," chiefly against the Soviet Union, and what is appropriated primarily to gratify what General de Gaulle called America's "itch to intervene." There is the well-calculated tendency of course to declare everything, North-South as well as East-West, automatically a part of our defense against the Soviets. Despite the heavy precedents of Yugoslavia, Albania, and China, any government that can be described as Marxist-Leninist is declared a pawn or satellite of the Soviet Union. But much of this wouldn't for a moment pass the scrutiny of a blue ribbon commission created to distinguish between "for the common defense" and moralistic interventionism.
The fact is, our interventions, so often clumsy and unavailing, in Vietnam, the Dominican Republic, Haiti, Lebanon, Iran, Grenada, and other places on the planet have little to recommend them beyond desire "to teach these people how to elect good men," to use Woodrow Wilson's phrase. Being busy-body Mrs. Grundy, America must plant seeds of American democracy—as if it were really possible—everywhere our 600-ship navy will reach.
A visiting Martian would wonder why a decent sense of ordinary humility doesn't sometimes restrain America in her stance before the world. We must have been the very last major nation to abandon chattel slavery; when we did, it was by war powers action of Lincoln in the midst of one of the bloodiest wars in history up to that time; and when freed, the blacks were condemned for 100 years in the United States to a system of segregation at least as severe as apartheid. By what piece of equity do we lash South Africa? I shall be very glad to see the Soviets make their difficult retreat from Afghanistan, but our own Afghanistan was 10 years spent in Vietnam in often appalling circumstances of our own creation. I can't recall much holier-than-thou response from the Soviet Union or any other nation toward us at the time.
Of all substitutes for a commonsense policy of national interest in our relations with the world, moralism is the worst on logical grounds and the most dangerous on any count. The fatuousness is often compounded by the fact that a given moralistic position taken by the United States toward a South Africa or Persian Gulf may have behind it, not a consensus of the American people, but instead a clamant minority that has been able to get the attention of the news media and then Congress.
It is always possible that America will make holy what she touches. The odds are greater that she will only make farcical what she touches—as in Iran, Angola, Grenada, and Haiti.
Robert Nisbet is the Jefferson Lecturer designate for 1988. This essay is an adaptation of several parts of his forthcoming book, The Present Age (Harper & Row).
Promote the General Welfare
Tibor R. Machan
The welfare state was already on economist Nassau Senior's mind around 1834, when he designed the English Poor Laws. "It is the duty of a government to do whatever is conducive to the welfare of the governed," he said. In late 19th-century America, Richard T. Ely, an institutional economist, denounced laissez-faire as "unsafe in politics and unsound in morals."
The notion that the "general welfare" lies in government intervention in the economic and moral lives of citizens remains a common one. Conservatives such as George Will and Irving Kristol look to the state as soul crafter as well as the provider of an economic safety net, while socialists such as Michael Harrington find in the Constitution's welfare clause the justification for income redistribution. The welfare state—the largely government regulated system of production, allocation, and distribution of society's resources, aimed at a balance between political liberty and well-being for all—is believed by many to be what the Framers wanted for our country.
But does the welfare clause in the Preamble really suggest that the American political system was meant to be a welfare state? Those giving an affirmative answer are certainly right to this extent: the Framers did want the Constitution to enable us all to prosper. By "the general welfare," they meant the conditions that are a general—as distinct from diverse or specialized—requirement for people's well-being. And they specifically guarded against including in the Constitution the innumerable special-interest objectives the modern welfare state is designed to serve. (For more, see Forrest McDonald, Novus Ordo Secbrum: The Intellectual Origins of the Constitution, 1986.)
Given the full context of the Preamble it is clear that the Framers believed that protecting individual rights is just what is required to promote the general welfare. Individual rights to life, liberty, and the pursuit of happiness are the standard of justice. And these rights are not to be found in an interventionist, paternalist, redistributionist welfare state.
This libertarian reading of the American founding has fallen into disrepute, because of the rejection of a certain conception of human life. That conception holds that human beings—if left free, if dealt with justly, if not faced with constant conflicts and wars—will proceed most effectively to promote their own individual or special welfare. And this individual pursuit of happiness will lead to mutual prosperity.
Here we have the insight of Adam Smith and all those political economists—from either the natural-law or the utilitarian traditions—who see an intimate tie between liberty and prosperity. What only a few saw, among them the poet John Milton, is that the same connection exists between liberty and virtue.
Why is there so little confidence in the idea that virtue and liberty are intertwined? The explanation for it lies in an element of modern philosophy.
When religion still had a hold on intellectuals and the ancient Greek vision of human nature could still command some respect, the idea that free men and women should live right made sense. The Greeks held that human beings can act purposively. Aristotle, for example, explained that the morally virtuous life has to be chosen by the person—prudence or generosity, for example, is a virtue only if the person elects it, not if he or she is forced to conform to it.
And while the Greeks were not radical individualists, they did consider it most important that a human community make the morally virtuous life possible. It remained for later thinkers to suggest that one crucial requirement for this is limiting the power of government.
The Greek view was improved upon, accordingly, with the development of the idea of the liberal polity. If people are to live properly, then they need a substantial sphere of individual responsibility. By the 14th century, William of Ockham characterized property rights as "the power to conform to right reason." John Locke, in the 17th century, went even further with his doctrine of natural individual rights, from which the Founders drew in the Declaration of Independence.
The crux of the thesis that emerged is that people can make the most of their lives if they are are not subjugated to the intrusive, meddling powers of others, including the state—if "laissez-faire, laissez-passer" is honored. They will flourish on their own, by their own initiative. Therefore, lack of this kind of freedom, of "negative liberty," is the major obstacle to progress on all the fronts of human life, even in helping the poor and the sick.
So, eliminate wars, settle disputes by respecting justice (that is, individual rights), defend the community, and secure liberty. This will promote general welfare—the welfare of all as members of the public. There is no need under these conditions for government to become paternalistic. Individuals themselves will have ample opportunity to promote their own diverse welfare, by doing well at living their lives.
Throughout the last two centuries, however, this idea of the basic capacity for individual initiative was abandoned at the metaphysical level. Human nature was reconceived along more passive lines, even while political thought was still shaped by the earlier view. The new idea that emerged—at the hands of those who admired the achievements of mechanistic science—is that the forces of nature made us as we are. Some of us then ended up lacking in basic necessities or talents, while others were more fortunate. The most efficient way to remedy this situation seemed to be a forceful welfare state that evened up the discrepancies.
In earlier times, personal initiative had been assumed. It made the idea of private, voluntary progress sensible. That accounted for the initial libertarian features of liberalism. But once personal initiative became incongruous, because it appeared to conflict with the reigning mechanistic science, the kind of liberalism that was meant to accommodate it fell into disrepute. Instead, liberalism began to mean setting people free of their hardship by the force of the state. (It is just this that is meant by Marxist "liberation.")
Subsequently, the idea gained respect that society is a team. And members of the team possess different talents, circumstances, and assets, with each equally helpless in the face of his or her lot.
This concept suggested a new idea of justice, namely, fairness. We are all on the same team, yet some of us are better off than others. That is unfair. No one could do anything to deserve his or her lot, so why should anyone be better off than someone else? It is just a matter of bad luck or good luck, nothing more. The most prominent book in political philosophy in our time, John Rawls's A Theory of Justice (Harvard, 1971), gives extensive expression to this popular notion.
From this idea, the welfare-statist egalitarian impulse is but a few steps away. We must, as a society, do everything we can about this unfairness—it's a matter of social justice—even if chances of rectifying matters are minimal and seeking such rectification could produce greater and greater poverty. It is our duty as a society to try.
Abandoning the idea of individual initiative is, however, tragically mistaken. First, society is not really a team. Pace Karl Marx, who wrote that "the human essence is the true collectivity of man," we are all essentially individual human beings. We do have roughly the same capacity to set out on our journeys, whatever our starting points. But how well we will do is ultimately up to us—provided we are left to our own resources. What really counts most is not fairness but liberty. The team is a wrong and destructive analogy. A friendly marathon race, perhaps, or carnival, would do much better.
Accordingly, a better conception than John Rawls's theory of "justice as fairness" is that of "justice as liberty." The central feature of political justice is to acknowledge everyone's sovereignty, whether he or she be humble or great, rich or poor, beautiful or ugly, healthy or ill. On the whole all we need from politics—from the power of legalized force—is to secure justice. Once this is achieved, prosperity will usually be taken care of by free people. And they will do so better than administrators of justice who "help" some at the expense of others.
To those who still hang on to the scientistic idea of classical mechanics, we must say, Relax! Nothing in science precludes the idea that we can cause much of our own behavior and that we are responsible for how well or ill we do in life. In the complex universe we now know, self-determination is indeed possible. (For more on this, see Roger W. Sperry, Science and Moral Priority, 1983.) Normally, persons are their own agents and thus responsible to face up to the challenges of their lives.
What's more, this idea is closer to what the Framers had in mind and makes better sense. The power to initiate action is well entrenched as a quintessential human characteristic.
Given the logic and context of the founding of the American republic, the welfare clause in the Preamble suggests that we are all to strive to promote our individual well-being and government is to promote the conditions in which that is possible—preserve justice, tranquillity, the common defense, and liberty for all.
In time, perhaps, enough men and women will realize the merit of this radical outlook. They may come to see that not only can our diverse welfare be promoted better by free individuals, but so can the general welfare. They may also come to appreciate the fact that it is indeed a noble and moral responsibility of everyone to make his or her contribution primary, relying on the charity of others only in emergency cases and only when the help is freely given.
Despite notions to the contrary—even by some friends of freedom—ideas do have some consequences. I nominate for an idea that could have some of the best consequences the self-determining power of individual human beings. We can and ought to flourish in life. But only by seeing ourselves as mostly capable, potent creatures rather than wards of the elect will we achieve that goal.
Senior Editor Tibor R. Machan teaches philosophy at Auburn University and is the author of Human Rights and Human Liberties.
Secure the Blessings of Liberty
Constitution making is serious business. It is doubtful the Framers would have attended more carefully to their task had they known that 200 years hence their efforts would be immortalized in fireworks displays and cereal boxes. The prospect of building a nation is reason enough to consider with full deliberation each clause, indeed every word. So it is sound policy to assume that what was said was meant to be said, and meant to be said in just that way in which it appears.
If that is right, the Preamble to our Constitution presents no less than a philosophical puzzle. The Constitution, it tells us, aims to achieve union, justice, tranquillity, defense, welfare, and the blessings of liberty. But why blessings of liberty, and not liberty itself? The other intended constitutional products travel solo, but liberty is married to its blessings. Why should that be? In what way is liberty deemed to be special?
The special treatment does not represent unalloyed praise of liberty. I do not believe that I am reading too much into the text when I see it as issuing a cautionary note. The Framers thereby provide a suggestion, possibly even an insistence, that the value of liberty is not unconditional.
In that respect it is unlike the other political goods cited. Justice can stand by itself; a regime that is just is necessarily and intrinsically superior, all else equal, to one that lacks justice. The same, presumably, can be said on behalf of one that enjoys tranquillity, that is able to defend itself, or that bestows general welfare. But liberty is not self-validating. It is rather to be cherished in virtue of its fruits, but only insofar as these are genuinely blessings. They can, the Preamble implies, turn out to be otherwise.
Whatever else liberty may be, it necessarily entails the absence of certain constraints. The constraints in question may be ones inimical to the flowering of cherished human aspirations, but they can also turn out to be requisite for the preservation of valued structures within which those aspirations flourish.
This double-edged character is nicely captured by that most philosophical of languages, classical Greek, in which the verb that means "to set free" can also have the sense "to destroy." The Framers were practical men, but they were also graced with philosophical temperaments. They understood this polarity well. Today our language gives us hardly a clue of it, perhaps only in the Orwellian term "wars of national liberation."
If liberty can prove so dangerous, then on what basis could its blessings have been so forthrightly affirmed? Precisely, I suggest, from that which makes liberty a risky proposition: its open-endedness.
If I'm free to follow in the path of the angels, then I'm also at liberty to dally with devils. The theological allusion may seem like innocuous metaphorical fancy. It was something more in 1787.
The two centuries that preceded the foundation of the American republic witnessed European wars bloodier than that continent had known before, wars in which Catholics merrily dispatched Protestants to their maker and Protestants eagerly returned the favor, all for His greater glory. "Error has no rights!" was the standing order under which armies marched. Rights it may not have had, but error did have its own armies. An outcome of the clashes between Truth and the Lie—however they were represented on one's personal scorecard—was a measure of religious toleration, but less out of philosophical conviction than from the exhaustion of stalemate.
From its beginning the United States was different, not entirely and in every respect, but different nonetheless. For America, like liberty, was open-ended.
Thirteen newly minted states perched on the Atlantic seaboard gazed out over a continent that stretched almost without limit to an uncharted west. Human possibilities were freed from the bonds that shackled Europeans' prospects. That is why, of course, so many came. Ownership of property and the concomitant opportunity for independence were available to those willing to gamble on their own courage and determination and luck. Not every such gamble was won, but the liberty to chance success or failure went with the geography.
Equally important was the continent's historical openness. If the new nation was genuinely to become a nation, it would be via its own wit and resolve. Nothing was given, at least not absolutely and unalterably so. There was neither nobility nor clerical order vested from time immemorial with exclusive authority to rule or to preach. Established political structures had been sundered by revolution, and their replacement would necessarily have to look to the future rather than passively take their cue from the past.
The United States, unlike the individual states, strictly speaking had no history. Invention of a history-to-be was why 55 men sweltered through a Philadelphia summer. They doubtlessly realized that there could be no more striking and momentous an exercise of liberty than the creation ex nihilo of a nation.
A constitution well made would indeed be a blessing to its framers and to their posterity. There was, though, no assurance that the result would be successful. No such thing had been done before. Old myths depicted the construction of nations as a job for gods or men who communed with gods. The Framers labored under no illusion of divinity. They knew they were men, fallible men, and none claimed to have participated in a summit conference at Mt. Sinai. Nonetheless, they persevered. Each state was protective of its own prerogatives and institutions. The document that resulted was the product of compromises including, most notoriously, the infamous "three-fifths" clause.
That the Constitution was born imperfect is no discovery that awaited the development of exquisitely progressive 20th century sensibilities; those leaving Philadelphia knew it well enough. Theirs was the hope that liberty would be generous with its blessings; perfection was entirely out of the question.
Indeed, our recent celebration of 200 years of constitutional governance may owe much to the fact that it was the openness of liberty rather than some ideal of perfection that guided the Framers. Most subsequent exercises in regime making have been conspicuously less successful despite the existence of the United States as a potential model for emulation. France's rule of the virtuous was immediately overtaken by the reign of terror; new Soviet man was killed by the tens of millions in Siberia, the Ukraine, and elsewhere to satisfy the stern stricture of the prophet Marx. From Ethiopia to Iran, the carnage continues. Better, we may reflect, to offer a cautious welcome to the blessings that liberty may afford than to lavish enthusiasm on the millennium spied lurching around the historical corner.
Better also to realize that liberty is a starting point for achievement and not its fully realized outcome. Merely to prize liberty is insufficient; without a lively conception of the gulf that separates its potential blessings from the curses that beset the unwary or unfortunate, liberal inclinations surrender their moral content. It is incoherent to suppose that freedom matters a great deal but that how people choose to use their freedom is immaterial. An equivalent but opposite incoherence is to conclude that because the consequences of individuals' choices can and do prove momentous, choice should be taken out of their hands. The Framers avoided both errors. We owe them some credit for that.
Loren Lomasky teaches philosophy at the University of Minnesota, Duluth, and is the author of Persons, Rights, and the Moral Community.
To Ourselves and Our Posterity
A false premise prevails in the latter half of this century, one that will seem as naive to our grandchildren as the Victorians' confidence in the permanency of empire now seems to us: that democracy is a stable form of government. It is as if we need worry only about how well we are making democracy serve whatever policies are in vogue, not whether democracy itself will continue to survive. Thus when I recently suggested before an audience that I thought my children would probably live to see the end of American democracy, the reaction was not so much "Why do you think that?" as "Don't be silly."
The Framers knew better. They examined history as carefully as they studied political theory, and the signal lesson they drew from history is that Democracies Don't Last. They don't because of faction—citizens "who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens," in Madison's words. It was not theory, the Framers observed, but a statement of fact: if factions are permitted to work their will on the polity, they destroy first liberty and then democracy itself—invariably.
So the Framers prepared a Constitution that arrayed all the structures of government against the effects of factions, by substituting representative democracy for direct democracy, by dividing power within the government, and above all by radically restricting the things that the central government was permitted to do. And thereby they hoped to secure the blessings of liberty to themselves and their posterity.
People engaged in the business of policy analysis have largely forgotten that the design of the Constitution was driven by fear for democracy's survival, not hope for its achievements. There are a few exceptions to the forgetfulness, thankfully, especially in the scholars of the "public choice" school. But in all the effusion of talk about the Constitution during the bicentennial year just past, in all the self-congratulatory talk about the success of "checks and balances" and "the living document," I cannot recall hearing this ultimately simple message: If the Framers were right in their reading of history and human nature, we cannot go about democracy the way that the United States (and every other Western democracy) has been doing it recently—not just should not but cannot, if we want democracy to last much longer.
Most of contemporary policy is based on the assumption that the Framers were wrong. It is believed, apparently by a very large majority of people in every modern democracy, that humans can act collectively with far more latitude than the Framers believed: If humans seek a more even distribution of resources, they may achieve it by using government to take money from one set of people and giving it to another. If humans want an end to racial inequality or sexual inequality, it is within their grasp to have it; all they have to do is pass the right laws. The world can be made constantly fairer if human beings use the instruments of government to reduce unfairnesses.
If the Framers were wrong, we may continue to be optimistic in the face of failures and the ubiquitous "unintended outcomes" that have followed such policies; we may assume that the proper response is to try again with another and better political solution. Most importantly, if the Framers were wrong, then we may assume that this expansive use of a centralized government can continue over the long run, because men have it in them after all to use the power of the state to do good.
If, on the other hand, the Framers were right, then we are already in big trouble. Democracies, they told us, begin to degrade when a faction is able to use the state to impose its vision of the good on the rest of society. And a relentless use of the state in just that fashion—to determine what is the majority faction, then permit that faction to impose its vision of the good on everyone—is the essence of contemporary policy.
That the contending factions are intent on using the state is not new. What is new is that so many now think that democracy can survive the success of a majority faction, that a majority faction is not dangerous as long as its causes are good. The left and the right struggle over whose vision of the good the government will enact. The only way to preserve democracy is to ensure that visions of the good cannot be enacted.
Here is where I ought to offer my solution, but I am deeply pessimistic and have none in which I place confidence. I do not see how to put the genie back in the bottle, how to restore old limits and say, "This time, let's not fool with them." But we have to try.
In that spirit, let me suggest that we resurrect another of the Framers' neglected insights: To preserve liberty, it is much more important that the central government be strictly limited than that all government be strictly limited. If the citizens of Bridgeport pass a bad law, that's too bad, but it is fairly easy to move out of Bridgeport, and a marketplace of governments that must compete for taxpayers restrains government's worst features. When Washington, D.C., passes a bad law, there's no recourse and no competition. I raise this point partly because of my own attraction to the virtues of community as well as to the freedom of individuals, but also as a practical matter. I sympathize with those who argue that governments at all levels ought to be limited for reasons of principle. But they will never convince a popular majority to go along with them. It seems increasingly clear that in ordinary situations most people prefer to live in extensive states.
Assuming that to be true (I will not try to prove the point here), then the only hope for sustaining democracy and the considerable level of freedom that citizens of the United States still enjoy is to make the case for tolerating diversity. For while most people prefer extensive states for themselves, I think most people—or at least most Americans—can still be persuaded that national uniformity is not necessary. It just might be possible to put together a majority of voters who believe that people should be free to live according to their beliefs, which means that people should be free to form communities as they see fit within a few overarching constraints—a majority who will agree, as it were, to take seriously once more the Ninth and Tenth amendments.
In seeking to restore that pragmatic outlook that underlay the original Constitution—restricting the national government above all and leaving considerable latitude to the lower levels of government-lies the best chance for mobilizing a majority and in the process .securing the blessings of liberty to our own posterity.
Charles Murray is the author of Losing Ground. His new book, In Pursuit, will be published this fall by Simon & Schuster.
This article originally appeared in print under the headline "We the People".