Others before the American Founders had dreamed of a political order of liberty and justice, but every previous attempt ended in failure. That men again and again, admittedly fitfully and never successfully until the Founders, struggled to hold that ideal above the dreadful historical reality is perhaps Western civilization’s most honorable claim to greatness. The Founders’ solution is the crowning glory of that noble tradition.
The Founders’ solution has two main parts. To find them we need look no farther than the Declaration of Independence and the Constitution.
All Rights Are Not Unalienable
First is the world-changing use the Declaration made of the idea of unalienable rights. The idea is not original to the Founders. They got it from a philosopher named Francis Hutcheson. His book, “A System of Moral Philosophy,” was published in 1755. (In those days, political philosophy was understood to be a branch of moral philosophy.) Here is Hutcheson on our rights in that book: “Our rights are either alienable or unalienable.”
Hutcheson’s book arrived just in time to provide the Founders with the ideas and the manner of thinking they needed. His discussion of our rights convinced the Founders, and the use of the phrase “unalienable rights” identifies his followers in philosophy and in American political thought. Here is John Adams in the constitution of the state of Massachusetts: “All people are born free and equal, and have certain natural, essential and unalienable rights.” Thomas Reid, perhaps the most brilliant thinker in the philosophical tradition Hutcheson founded, wrote of “the natural, the unalienable right of judging for ourselves.”
Fortunately for us, the Founders knew Hutcheson’s discussion of our rights inside and out. They made the idea of unalienable rights their own—and the first part of their two-part solution to the problem that had vexed the West for millennia. The Founders went far beyond Hutcheson’s philosophical argument that we have unalienable rights to declare that the purpose of government is the preservation of those rights.
The Declaration makes that perfectly clear: “…that they are endowed by their Creator with certain unalienable Rights…That to secure these Rights, Governments are instituted among Men…”
The Declaration does not simply declare America’s independence; it declares that every government not designed and dedicated to securing the unalienable rights of its people is illegitimate. The Declaration does not limit itself to rejecting rule by the British monarch, but goes on to reject the legitimacy of every regime then in existence. Now, that’s a revolution!
Rights Prevent a Tyranny of the Majority
This brings us to the second part of the solution, to federalism and the Constitution. The great failing of earlier attempts at the people ruling themselves was the tendency for them to become tyrannies of the majority. That we have unalienable rights determines a fundamental feature the design of the American regime of liberty, and any legitimate regime, must have. It must be designed to prevent a tyranny of the majority because a tyranny of the majority directly threatens our unalienable rights.
The Framers of the Constitution aimed to preserve our unalienable rights by preventing the concentration of political power. They did so by distributing power among the executive, legislative, and judicial branches of the federal government, preserving the political independence of the states, and by creating a zone of liberty around the individual—even by further dividing the (supreme) legislative power itself, crafting two legislative bodies with separate powers and potentially competing interests.
Jefferson put it this way: “What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body.” Lord Acton put it this way: “Liberty consists in the division of power. Absolutism, in concentration of power.” “Federalism” names the American system of dividing and dispersing political power in order to secure our unalienable rights.
Here is the Founders’ federalist vision for the central government, according to James Madison in “Federalist” 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
Fake Rights Crowd Out Real Rights
Today it is the federal government and not the states whose powers are “numerous and indefinite.” Its powers have been expanding at an ever-increasing rate for more than a century. All Americans alive today have grown up with the federal Leviathan. Consequently, the reduced condition of the states is invisible to most of us. Once glimpsed, the concentration of power in the federal government is obviously in clear violation of the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Tenth says that the federal government is limited government, limited to the (limited) powers granted it by the Constitution. (If the Great Tenth sounds like the quote from “Federalist” 45 above, that is for the very good reason that Madison wrote them both.) We are now in a position to ask how well the Founders’ solution is holding up in our time. The question answers itself. We are very far advanced in the process of discarding their brilliant solution.
Today we are deluged with talk of rights: gay rights, transgender rights, civil rights, even constitutional rights, but unalienable rights have gone missing from our day-to-day political conversation. The readily observable fact that we no longer think politically in terms of unalienable rights is a perfect measure of how much we have abandoned the Founders’ vision.
It is not quite as easy for citizens to recognize what has happened to federalism, but the reality there is equally sobering. The Tenth Amendment has become a dead letter. For the past century, political power has been concentrating in Washington DC to a degree and at an accelerating rated that would horrify the Founders. This concentration of political power is precisely what they sought to avoid.
The good news is that the Founders did solve that most difficult problem for us. The solution is there, awaiting our return to it. It can of course be done, but, like the national debt, the longer we continue on our present course, the greater the challenge becomes.
Still, it must be admitted, as Lord Acton wrote in his magnificent Essays in the History of Liberty, until the problem was finally solved “the history of freedom was the history of the thing that was not.”