Krannawitter on constitutional government

If you believe with America's founders that our rights come from God, then government exists not to create but only to secure them. This calls for a government of limited purpose, and therefore of limited powers. Those limits in turn require a constitution. But if you believe, with progressive critics of the founding from the 1880s to the present (see any speech by Hillary, Obama, or Edwards), that our rights are created by government, then the more government... the more rights... the better. The state then can and must be unlimited in purposes and power, lest we all perish.

Blocking this road, however, is the inconvenience of an unchanging constitution. You must get around that obstacle somehow. If it can't be dumped (Wilson in 1885 called it witchcraft, too blunt an approach), then morph and bend it beyond recognition (Wilson's "living constitution" gambit of 1913, brilliantly successful) or patronizingly say its work is done and new meanings are needed to sustain it in new times (FDR's even more brilliant doctrine of 1932 and 1944).

The above generally maps a lecture presented by Dr. Thomas L. Krannawitter, a Hillsdale College political scientist and Claremont Institute fellow, for the El Pomar Foundation in Colorado Springs on Oct. 17 and again for Claremont's Denver-area supporters at the State Capitol on Oct. 18.

I served as moderator on both occasions, and for the benefit of many who couldn't attend, I am posting Tom Krannawitter's source materials for the lecture. They are in two sections with individual entries as listed.

Natural Rights and the American Founding

Declaration of Independence:

When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.

We hold these Truths to be self-evident, 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, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future security…

Massachusetts Constitution:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

U.S. Constitution, Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The American Founding and Constitutional Government

The Federalist Papers, number 49:

[I]t may be considered as an objection inherent in the principle [of frequent constitutional conventions], that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration, which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself is timid and cautious, when left alone; and acquires firmness and confidence, in proportion to the number with which it is associated. When the examples, which fortify opinion, are ancient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws, would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage, to have the prejudices of the community on its side… [I]t is the reason of the public alone that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.

The Federalist Papers, number 51: But what is government itself but the greatest of all reflections on human nature? 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. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

The Federalist Papers, number 55: As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us, faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

The Federalist Papers, number 57: If it be asked what is to restrain [those in government] from making legal discriminations in favor of themselves and a particular class of the society? I answer, the genius of the whole system, the nature of just and constitutional laws, and above all the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the Legislature as well as on the people, the people will be prepared to tolerate anything but liberty.

Progressive Critics of the American Founding

Woodrow Wilson, Congressional Government (1885): Our constitutional ideal [is akin to] political witchcraft…

Woodrow Wilson, The New Freedom (1913): The makers of our Federal Constitution read Montesquieu with true scientific enthusiasm. They were scientists in their way—the best way of their age—those fathers of the nation. Jefferson wrote of “the laws of Nature”—and then by way of afterthought—“and of Nature’s God.” Politics in their thought was a variety of mechanics. The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of “checks and balances.” The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton….Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission—in a era when “development,” or “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine. Some citizens of this country have never got beyond the Declaration of Independence, signed in Philadelphia, July 4th, 1776….The Declaration of Independence did not mention the questions of our day. It is of no consequence to us unless we can translate its general terms into examples of the present day and substitute them in some vital way for the examples it itself gives…It is an eminently practical document, meant for the use of practical men; not a thesis for philosophers… What form does the contest between tyranny and freedom take today? By tyranny, as we now fight it, we mean control of the law, of legislation and adjudication, by organizations which do not represent the people, by means which are private and selfish…We mean the alliance, for this purpose, of political machines with selfish business.

Charles Merriam, A History of American Political Theories (1903): The individualistic ideas of the natural right school of political theory, endorsed in the [American] Revolution, are discredited and repudiated. The notion that political society and government are based upon a contract between independent individuals and that such a contract is the sole source of political obligation, is regarded as no longer tenable…. It is of vital importance to notice that liberty is not a natural right which belongs to every human being without regard to the state or society under which he lives. On the contrary, it is logically true and may be historically demonstrated that the state is the source of individual liberty. It is the state that makes liberty possible, determines what its limits shall be, guarantees and protects it….It is denied that any limit can be set to governmental activity [because the natural rights theory of the U.S. Constitution] no longer seems sufficient.

John Dewey, The Future of Liberalism (1935): The fundamental defect [in the old liberalism of the Founding] was lack of perception of historic relativity. This lack is expressed in the conception of the individual as something given, complete in itself, and of liberty as a ready-made possession of the individual, only needing the removal of external restrictions in order to manifest itself. The individual of earlier liberalism was a Newtonian atom having only external time and space relations to other individuals, save that each social atom was equipped with inherent freedom. These ideas…formed part of a philosophy in which these particular ideas of individuality and freedom were asserted to be absolute and eternal truths; good for all times and all places. This absolutism, this ignoring and denial of temporal relativity, is one great reason why the earlier liberalism degenerated so easily into pseudo-liberalism… I pass now to what the social philosophy of liberalism becomes when its inheritance of absolutism is eliminated. In the first place such liberalism knows that an individual is nothing fixed, given ready-made. It is something achieved, and achieved not in isolation, but the aid and support of conditions, cultural and physical, including in “cultural” economic, legal, and political institutions as well as science and art. Liberalism knows that social conditions may restrict, distort, and almost prevent the development of individuality. It therefore takes an active interest in the working of social institutions that have a bearing, positive or negative, upon the growth of individuals who shall be rugged in fact and not merely in abstract theory. It is as much interested in the positive construction of favorable institutions, legal, political, and economic, as it is in the work of removing abuses and overt oppressions. In the second place, liberalism is committed to the idea of historic relativity. It knows that the content of the individual and freedom change with time; that this is as true of social change as it is of individual development from infancy to maturity. The positive counterpart of opposition to doctrinal absolutism is experimentalism. The connection between historic relativity and experimental method is intrinsic. Time signifies change. The significance of individuality with respect to social policies alters with change of the conditions in which individuals live. The earlier liberalism in being absolute was unhistoric… The commitment of liberalism to experimental procedure carries with it the idea of continuous reconstruction of the ideas of individuality and of liberty in intimate connection with changes in social relations…It follows that there is no opposition in principal between liberalism as social philosophy and radicalism in action....What has been said should make it clear that the question of method in formation and execution of policies is the central thing in liberalism. The method indicated is that of maximum reliance upon intelligence…The question of the practical significance of liberty is much wider than that of the relation of government to the individual…. Government is one factor and an important one. But it comes into the picture only in relation to other matters. At present, these other matters are economic and cultural….No economic state of affairs is merely economic. It has a profound effect upon presence or absence of cultural freedom. Any liberalism that does not make full cultural freedom supreme and that does not see the relation between it and genuine industrial freedom as a way of life is a degenerate and delusive liberalism.

Franklin Delano Roosevelt, Commonwealth Club Address (1932): The issue of government has always been whether individual men and women will have to serve some system of government of economics, or whether a system of government and economics exists to serve individual men and women. This question has persistently dominated the discussion of government for many generations. On questions relating to these things men have differed, and for time immemorial it is probable that honest men will continue to differ. The final word belongs to no man; yet we can still believe in change and in progress… Clearly, all this calls for a re-appraisal of values. A mere builder of more industrial plants, a creator of more railroad systems, and organizer of more corporations, is as likely to be a danger as a help. The day of the great promoter or the financial Titan, to whom we granted anything if only he would build, or develop, is over. Our task now is not discovery or exploitation of natural resources, or necessarily producing more goods. It is the soberer, less dramatic business of administering resources and plants already in hand, of seeking to reestablish foreign markets for our surplus production, of meeting the problem of under consumption, of adjusting production to consumption, of distributing wealth and products more equitably, of adapting existing economic organizations to the service of the people. The day of enlightened administration has come… As I see it, the task of government in its relation to business is to assist the development of an economic declaration of rights, an economic constitutional order… The Declaration of Independence discusses the problem of government in terms of a contract. Government is a relation of give and take, a contract, perforce, if we would follow the thinking out of which it grew. Under such a contract rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order.

Franklin Delano Roosevelt, Acceptance of Re-nomination (1936): Philadelphia is a good city in which to write American history. This is fitting ground on which to reaffirm the faith of our fathers; to pledge ourselves to restore to the people a wider freedom; to give to 1936 as the founders gave to 1776—an American way of life. That very word freedom, in itself and of necessity, suggests freedom from some restraining power. In 1776 we sought freedom from the tyranny of a political autocracy—from the eighteenth century royalists who held special privileges from the crown. It was to perpetuate their privilege that they governed without the consent of the governed; that they denied the right of free assembly and free speech; that they restricted the worship of God; that they put the average man’s property and the average man’s life in pawn to the mercenaries of dynastic power; that they regimented the people. And so it was to win freedom from the tyranny of political autocracy that the American Revolution was fought. That victory gave the business of governing into the hands of the average man, who won the right with his neighbors to make and order his own destiny through his own Government. Political tyranny was wiped out at Philadelphia on July 4, 1776. Since that struggle, however, man’s inventive genius released new forces in our land which reordered the lives of our people.. The age of machinery, of railroads; of steam and electricity; the telegraph and the radio; mass production, mass distribution—all of these combined to bring forward a new civilization and with it a new problem for those who sought to remain free. For out of this modern civilization economic royalists carved new dynasties. New kingdoms were built upon concentration of control over material things. Through new uses of corporations, banks and securities, new machinery of industry and agriculture, of labor and capital—all undreamed of by the fathers—the whole structure of modern life was impressed into this royal service. ...Throughout the Nation, opportunity was limited by monopoly. Individual initiative was crushed in the cogs of a great machine. The field open for free business was more and more restricted. Private enterprise, indeed, became too private. It became privileged enterprise, not free enterprise. ...For too many of us the political equality we once had won was meaningless in the face of economic inequality. A small group had concentrated into their own hands an almost complete control over other people’s property, other people’s money, other people’s labor—other people’s lives. For too many of us life was no longer free; liberty no longer real; men could no longer follow the pursuit of happiness. Against economic tyranny such as this, the American citizen could appeal only to the organized power of Government. The collapse of 1929 showed up the despotism for what it was. The election of 1932 was the people’s mandate to end it. Under that mandate it is being ended.

Franklin Delano Roosevelt, State of the Union (1944): This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty. As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness. We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. "Necessitous men are not free men." People who are hungry and out of a job are the stuff of which dictatorships are made. In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed. Among these are: • The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation; • The right to earn enough to provide adequate food and clothing and recreation; • The right of every farmer to raise and sell his products at a return which will give him and his family a decent living; • The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; • The right of every family to a decent home; • The right to adequate medical care and the opportunity to achieve and enjoy good health; • The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; • The right to a good education. All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being. America’s own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world. One of the great American industrialists of our day—a man who has rendered yeoman service to his country in this crisis-recently emphasized the grave dangers of "rightist reaction" in this Nation. All clear-thinking businessmen share his concern. Indeed, if such reaction should develop—if history were to repeat itself and we were to return to the so-called "normalcy" of the 1920’s—then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of Fascism here at home.

Thurgood Marshall, Harvard Law Review Essay on the Constitution’s Bicentennial (1987): Like many anniversary celebrations, the plan for 1987 takes particular events and holds them up as the source for all the very best that has followed. Patriotic feelings will surely swell, prompting proud proclamations of the wisdom, foresight, and sense of justice shared by the framers and reflected in a written document now yellowed with age… I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start… When contemporary Americans cite “The Constitution,” they invoke a concept that is vastly different from what the framers barely began to construct two centuries ago… The original intent of the phrase, “We the People,” was far too clear for any ameliorating construction. Writing for the Supreme Court in 1857, Chief Justice Taney penned the following passage in the Dred Scott case, on the issue of whether, in the eyes of the framers, slaves were to be included among “We the People”:

We think they…were not intended to be included…They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race…and so far inferior that they had no rights which the white man was bound to respect.

And so, nearly seven decades after the Constitutional Convention, the Supreme Court reaffirmed the prevailing opinion of the framers regarding the rights of Negroes in America.

Justice O’Conner, Planned Parenthood v. Casey (1992): At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

Bill Clinton (1996): We have to broaden the imagination of America. We are redefining in practical terms the immutable ideals that have guided us from the beginning.

Alan Dershowitz, America Declares Independence (2003): [R]ights and equality are purely human inventions….[T]he reality is that natural law simply does not exist.