Defounding America
On the erosion of American freedoms.
by Myron Magnet
President Franklin Delano Roosevelt signs the Social Security Bill, August 14, 1935. Photo: Library of Congress.
To gauge how unbridgeable the gulf is that divides the American Left from the Right, rewind to February 19, 2009, when those who eventually elected Donald Trump first made their voices heard. As Washington jury-rigged fixes for the Great Financial Crisis, the CNBC broadcaster Rick Santelli shouted across the Chicago Mercantile Exchange floor, “How many of you people want to pay for your neighbor’s mortgage that has an extra bathroom and can’t pay their bills?” The Merc traders roared their televised veto across the land.
Their cry was more visceral than a policy disagreement. The traders, self-made men, had worked hard for what they had and scorned having their taxes hiked to save homebuyers with imprudently high mortgages from foreclosure. “This is America!” Santelli urged, and what the new Obama administration was doing was un-American. Didn’t the Founding Fathers establish the federal government to guarantee one’s freedom to better one’s condition, and to protect the property one industriously earns—not to redistribute it?
That’s why Santelli added that he was planning a Chicago Tea Party, an update of Boston’s 1773 event. He and the traders felt the same outrage George Washington had felt about the Stamp Act and the tea tax: it was as lawless as Parliament picking his pocket. To the new-era Tea Partiers, taxation for redistribution, rather than for common purposes, is tyranny, not government by consent.
But, though the traders and Tea Partiers didn’t quite understand it, the federal government long ago had turned from the shield of individual liberty into a vast engine of redistribution. That transformation could occur because the Framers’ Constitution was body-snatched by the doctrine of the “living constitution,” which—as Woodrow Wilson first formulated it—saw the Supreme Court sitting as a permanent Constitutional Convention, making up laws as it went along, heedless of the 1787 scheme’s checks. Franklin Roosevelt’s New Deal used Wilson’s doctrine as a license to remake America’s economy and society. Once the Supreme Court buckled to FDR’s threat to pack it and started voting his way, the justices allowed an utterly foreign governmental structure to devour the Framers’ republic from within, until it broke out of the shell as something altogether different. Continue reading →
Editors’ note: The following is an edited version of remarks delivered for The New Criterion’s second annual Circle Lecture on September 30, 2020.
However unfashionable to say so at the moment, the American Founding is one of the noblest achievements of the Western Enlightenment. It created something breathtakingly new in history: a self-governing republic that protects the right of individuals—not serfs, not subjects, but equal citizens before the law—to pursue their own happiness in their own way. Who could have imagined that such a triumph would come under the violent attack that now seeks to deny and besmirch it? Whether it flies the banner of The 1619 Project, Black Lives Matter, or Critical Race Theory, the new anti-Americanism condemns the Founding Fathers’ project as conceived in slavery, not liberty, and dedicated to the proposition that we can never be equal citizens with equal rights.
It is a militant anti-Americanism, too. Like the iconoclasm of the most violent English Puritans, who smashed the faces off the carved saints and angels in one sublime medieval church after another, or of the French sans-culottes, who dug up and desecrated nine centuries of royal bodies from their tombs in the Abbey of Saint-Denis, defacing for good measure the statues of the Old Testament kings on the façade of this first great Gothic building, today’s anti-Americanism seeks to pulverize and obliterate our national past as something too offensive and obscene to have existed.
The current upheaval is the latest paroxysm of a cultural revolution that has gained momentum for half a century or more, and its trajectory from the universities to popular culture is too well known to need repeating. What I want to discuss here is the precious value of our inheritance from the Founding Fathers that today’s vandals want to destroy. If they succeed—since history, even our own, doesn’t always go forward and upward, despite the claims of the so-called “progressives”—we will find ourselves in a new Dark Age of constraint and superstition.
At the heart of the Founding was a thirst for liberty. In announcing our national freedom from imperial domination, the Declaration of Independence began by asserting our right to individual liberty. For the Founders, that liberty was not some vague abstraction. They understood it concretely, as people do who’ve suffered its opposite. They grasped it like those Eastern Europeans who once lived under Communist tyranny, for instance, or like Jews who survived the Holocaust.
Will the Real Justice Gorsuch Please Stand Up?
Has a great judge been body-snatched?
Myron Magnet
June 21, 2020
The logic of Justice Neil Gorsuch’s mid-June majority opinion for the Supreme Court in Bostock v. Clayton County, outlawing employment discrimination against homosexuals and transgendered individuals, is so at odds with his previous jurisprudence and his character that the editors of the Wall Street Journal wonder if he’s been body-snatched by aliens. Or perhaps the noxious emanations and penumbras of Warren Court activism have seeped up from the Supreme Court’s crypt and addled what was once the most judicious of judges. Before hazarding a tentative diagnosis, though, let’s recall who the justice was before this seizure occurred. Continue reading →
Punishing people, even criminals, for ideas is inimical to the American tradition of free speech.
By
Myron Magnet
Jan. 1, 2020
Does it make sense that a person can burn an American flag with impunity but not a gay-pride flag? Earlier this month, a judge in Story County, Iowa, sentenced Adolfo Martinez to a preposterous 16 years in prison for swiping the rainbow flag from a nearby church and burning it in front of a strip club.
Mr. Martinez, 30, has a long criminal history, which partly explains the long sentence. He had two felony convictions, and Iowa law deems any three-time felon an “habitual offender,” subject to enhanced sentencing. But a jury convicted Mr. Martinez of three misdemeanors—third-degree arson, for which the maximum penalty is two years in prison, along with third-degree harassment and the reckless use of fire, each subject to a maximum one-year term.
Mr. Martinez complicated his own defense by telling a local TV station that he had torched the flag because he didn’t like gay people and had “burned down their pride, plain and simple.” In response, the judge increased the misdemeanor arson charge to a hate-crime charge—a felony, normally carrying a maximum of five years in prison. So what seemed on its face to be a minor infraction suddenly became Mr. Martinez’s strike three, inflating his five-year maximum to 15, plus an extra year for the reckless use of fire.
The absurdity of the sentence points up the larger absurdity of hate crimes as a class of criminal offense. Burning an American flag, the Supreme Court says, is free speech. The First Amendment allows you to register disapproval of the government in whatever expressive way you choose, though watch out for the arson laws. Calling the cops “pigs” or singing “F— da Police”? Also no problem, legally speaking. Unlike Canada, Europe and American colleges, the U.S. doesn’t have “hate speech” laws.
The idea that free speech means free speech is a jewel of American exceptionalism. It’s odious and moronic to deny the Holocaust, but it isn’t—and shouldn’t be—a crime. The New York Times didn’t clutch its pearls when Hillary Clinton dismissed Donald Trump’s supporters as a “deplorables” who are “irredeemable” and “not America.” Nor did the guardians of correct opinion blanch when Barack Obama disparaged a large number of Americans as troglodytes clinging to their guns and religion. Rep. Ilhan Omar is entirely at liberty to explain away support for Israel as being “all about the Benjamins, baby.” Robert De Niro is similarly free to give the finger to Mr. Trump and his supporters. All this is as American as apple pie, if less appetizing.
Designating an offense as a hate crime criminalizes not the action but the idea that supposedly impelled it. Here we are but a step away from the “thoughtcrime” George Orwell described in “1984.”
Properly, the law should ask only two questions about your state of mind. First, do you have the faculty of reason that allows you to distinguish right from wrong? Second, did you intend to do the crime you committed? Beyond that, as James Madison repeatedly insisted, you have freedom of conscience. You can believe whatever you want, however politically incorrect—especially since today’s political correctness may be deemed tyranny in retrospect. In a far-flung republic composed of various subgroups, multiple viewpoints and interests are bound to proliferate. Under such circumstances, toleration is required.
The New York area has experienced a rash of what Gov. Andrew Cuomo denounces as “hate crimes.” Swastikas have been scrawled in largely Orthodox Jewish neighborhoods. Adolescent thugs have assaulted Hasidim on the streets. In mid-December three customers and a cop were murdered in an attack on a Jersey City, N.J., kosher market. On Saturday, a madman stabbed five people at the home of a rabbi in Monsey, N.Y., north of the city.
I abhor these offenses, but I don’t see what is gained by Mr. Cuomo’s apoplectic imprecations. These outrages don’t presage pogroms, and it seems a fair bet that the perpetrators don’t know what the Holocaust was. Did it matter to the victims whether their assailants attacked them to steal their money, express their hostility, or take advantage of their vulnerability? Surely the solution isn’t relabeling but rather energetic and activist policing of the kind that discouraged violent acts by ill-socialized adolescents and street-dwelling crazies in New York for 20 golden years. Proactive policing also largely rid the streets of graffiti, offensive symbols included.
Let cops vigorously enforce existing laws against assault, harassment, vandalism, arson and the like. If the harassment amounts to an organized campaign of repression rather than random acts of delinquents or lunatics, then it’s time to dust off the Reconstruction Era’s antiterrorism laws. No group, whether Klansmen or members of an antifa mob, should be allowed to threaten or brutalize people.
It’s a sad reflection on the failure of New York’s current political culture, with its recent soft-on-crime legislation and abhorrence of common-sense policing, that ordinary people must think hard about the less appealing alternative of pressing for more teeth in the Supreme Court’s Heller decision, upholding citizens’ Second Amendment right to keep and bear arms for self-defense.
Clarence Thomas and the Lost Constitution
September 2019 • Volume 48, Number 9 • Myron Magnet
Myron Magnet
Author, Clarence Thomas and the Lost Constitution
The following is adapted from a speech delivered on September 17, 2019, at Hillsdale College’s Constitution Day Celebration in Washington, D.C.
Clarence Thomas is our era’s most consequential jurist, as radical as he is brave. During his almost three decades on the bench, he has been laying out a blueprint for remaking Supreme Court jurisprudence. His template is the Constitution as the Framers wrote it during that hot summer in Philadelphia 232 years ago, when they aimed to design “good government from reflection and choice,” as Alexander Hamilton put it in the first Federalist, rather than settle for a regime formed, as are most in history, by “accident and force.” In Thomas’s view, what the Framers achieved remains as modern and up-to-date—as avant-garde, even—as it was in 1787.
What the Framers envisioned was a self-governing republic. Citizens would no longer be ruled. Under laws made by their elected representatives, they would be free to work out their own happiness in their own way, in their families and local communities. But since those elected representatives are born with the same selfish impulses as everyone else—the same all-too-human nature that makes government necessary in the first place—the Framers took care to limit their powers and to hedge them with checks and balances, to prevent the servants of the sovereign people from becoming their masters. The Framers strove to avoid at all costs what they called an “elective despotism,” understanding that elections alone don’t ensure liberty.
Did they achieve their goal perfectly, even with the first ten amendments that form the Bill of Rights? No—and they recognized that. It took the Thirteenth, Fourteenth, and Fifteenth Amendments—following a fearsome war—to end the evil of slavery that marred the Framers’ creation, but that they couldn’t abolish summarily if they wanted to get the document adopted. Thereafter, it took the Nineteenth Amendment to give women the vote, a measure that followed inexorably from the principles of the American Revolution.
During the ratification debates, one gloomy critic prophesied that if citizens ratified the Constitution, “the forms of republican government” would soon exist “in appearance only” in America, as had occurred in ancient Rome. American republicanism would indeed eventually decline, but the decline took a century to begin and unfolded with much less malice than it did at the end of the Roman Republic. Nor was it due to some defect in the Constitution, but rather to repeated undermining by the Supreme Court, the president, and the Congress.
The result today is a crisis of legitimacy, fueling the anger with which Americans now glare at one another. Half of us believe we live under the old Constitution, with its guarantee of liberty and its expectation of self-reliance. The other half believe in a “living constitution”—a regime that empowers the Supreme Court to sit as a permanent constitutional convention, issuing decrees that keep our government evolving with modernity’s changing conditions. The living constitution also permits countless supposedly expert administrative agencies, like the SEC and the EPA, to make rules like a legislature, administer them like an executive, and adjudicate and punish infractions of them like a judiciary.
To the Old Constitutionalists, this government of decrees issued by bureaucrats and judges is not democratic self-government but something more like tyranny—hard or soft, depending on whether or not you are caught in the unelected rulers’ clutches. To the Living Constitutionalists, on the other hand, government by agency experts and Ivy League-trained judges—making rules for a progressive society (to use their language) and guided by enlightened principles of social justice that favor the “disadvantaged” and other victim groups—constitutes real democracy. So today we have the Freedom Party versus the Fairness Party, with unelected bureaucrats and judges saying what fairness is.
This is the constitutional deformation that Justice Thomas, an Old Constitutionalist in capital letters, has striven to repair. If the Framers had wanted a constitution that evolved by judicial ruling, Thomas says, they could have stuck with the unwritten British constitution that governed the American colonists in just that way for 150 years before the Revolution. But Americans chose a written constitution, whose meaning, as the Framers and the state ratifying conventions understood it, does not change—and whose purpose remains, as the Preamble states, to “secure the Blessings of Liberty to ourselves and our Posterity.”
In Thomas’s view, there is no nobler or more just purpose for any government. If the Framers failed to realize that ideal fully because of slavery, the Civil War amendments proved that their design was, in Thomas’s word, “perfectible.” Similarly, if later developments fell away from that ideal, it is still perfectible, and Thomas takes it as his job—his calling, he says—to perfect it. And that can mean that where earlier Supreme Court decisions have deviated from what the document and its amendments say, it is the duty of today’s justices to overrule them. Consequently, while the hallowed doctrine of stare decisis—the rule that judges are bound to respect precedent—certainly applies to the lower courts, Supreme Court justices owe fidelity to the Constitution alone, and if their predecessors have construed it erroneously, today’s justices must say so and overturn their decisions. Continue reading →
Misjudging Clarence Thomas
Corey Robin’s assessment of the Supreme Court justice is lost in left field.
Myron Magnet
September 29, 2019 Arts and CulturePolitics and law The Enigma of Clarence Thomas, by Corey Robin (Metropolitan Books, 320 pp., $27)
What deliciously ironic wit the New Yorker’s first art editor, Rea Irvin, deployed in his iconic drawing of Eustace Tilley, the Regency dandy quizzically inspecting a butterfly through a monocle on the magazine’s inaugural cover nearly a century ago. Ah yes, we Gotham cosmopolites view the rest of America as exotic insects worth a moment’s gaze as they hatch from the basket of deplorables and flit by for their 24 hours in the sun. But, Irvin hinted, what an affected fop is Eustace himself—as showy as the bright creature catching his glance but oh, how much more contrived in his top hat and impossibly high neckcloth. I can’t help wishing that Corey Robin, a Brooklyn College professor who has made a career of turning a supercilious monocle on conservatives and explaining their curious, “reactionary” ideas to his fellow enlightened “progressives,” had shown a scintilla of Irvin’s wry self-knowledge in his new book, The Enigma of Clarence Thomas, an excerpt of which the New Yorker coincidentally has just published. But since Robin’s assessment of the Supreme Court justice lacks a single self-questioning moment, let’s look back at him through his monocle and take our own measure of the author before we consider his account of our era’s greatest jurist.
How fashions have changed! Despite a modish dash of race, class, and gender, today’s New Yorker of refined sensibility, if Robin is a representative specimen, presents himself in his book as a conventional socialist, an admirer of the French rather than the American Revolution, and still mooning with nostalgia for that imaginary 1960s “revolution” that Bernie Sanders has dreamt of since his long-ago youth. In Robin’s vision, politics centers on the “power the state will have to involve itself in the affairs of the citizens,” making “rules for a more just and humane economy.” It is a realm of “democratic transformation, where men and women act deliberatively and collectively to alter their estate,” led by the “heroic action of an elite few,” masters of “the arts of persuasion, the mobilization and transformation of popular belief”—though Robin’s evocation of the Robespierres and Lenins of the world is bound to make one wonder just how democratic his vision of the popular will really is. What were the editors of the publication for which he writes a column thinking when they called it Jacobin, after a political elite that wrought its social transformation by removing the heads of those of the wrong class or opinion?
For Robin, capitalism is a system of “overwhelming, anti-democratic constraint” that takes “the great questions of society—justice, equality, freedom, distribution—off the table of public deliberation,” shielding them from “the conscious and collective interference of citizens acting through their government.” In this collectivist vein, he casts a cold eye on Madison’s classic formulation of American constitutionalism in Federalist 10. The Constitution protects life, liberty, and property, Madison writes, and since individual citizens have a boundless variety of talents, ambitions, and energies, the liberty the Constitution safeguards will result in different and unequal outcomes, including economic inequality. The danger in the democratic republic that the Constitution frames, Madison wrote, is that the unpropertied majority could use their voting numbers to expropriate the wealth of the rich few, trampling the Constitution’s protection of property. Such an expropriation is what Madison meant by the tyranny of the majority, and a key goal of the Constitution’s checks and balances is to forestall just that. When Robin holds up Justice Thomas’s citation of Madison’s argument as a mere ploy “to moralize moneymaking, to lend the market a legitimacy it had been denied by New Deal liberalism, to shield money and the market from political critique,” he seems to be looking at the Constitution through the wrong end of a telescope, seeing FDR and the New Deal’s tyranny of the majority, rather than James Madison and the protection of individual liberty, as the nation’s real Founding Father. Of the individual citizen whose liberty the Constitution is meant to shield, we hear nary a word until a third of the way through the book, and then only once or twice thereafter. Everyone is simply an atom dissolved in the mass of race, class, or gender.
The lens through which Robin views Thomas is even more distorting—not surprising, given that he “reject[s] virtually all of Thomas’s views” and moreover believes that the justice, during his confirmation hearings, “lied to the Judiciary Committee when he stated that he never sexually harassed Anita Hill,” an allegation that’s now the stock, and thus increasingly incredible, gambit for opponents of conservative judicial nominees. In the justice’s opinions, what Robin sees, as anyone who spends even an hour or two reading them must see, is Thomas’s striking concern with race, a subject that he raises repeatedly, even in cases seemingly far from the question. Upon this observation, Robin erects a wildly far-fetched account of the justice’s worldview and jurisprudence, one that imperiously sweeps away Thomas’s own careful exposition of his intellectual journey in his speeches and memoir as if he must be incapable of understanding his own mind and heart. But of course, this concern springs not just from Thomas’s personal history but also from the belief, central to his jurisprudence, that it’s precisely on race matters that the Court has made so many fateful wrong turns that need correction. Continue reading →
The gates of Auschwitz—with their demonic jeer, “Work Makes You Free”—led to history’s vilest demonstration of everything freedom isn’t.
Isn’t a sexual revolution a kind of revolution?” a Soviet dissident, the grandson of one of Stalin’s henchmen, asked me rhetorically in the mid-1970s. Recently released from five years’ Siberian exile, he certainly knew what slavery and tyranny were. But now, he wondered, couldn’t the waning of Russia’s sexual constraints be the harbinger of wider liberty? After all, he asked hopefully, “Isn’t sexual freedom, freedom?”
It didn’t turn out that way. So impoverished was the Soviet empire that it couldn’t give its subjects the bread and circuses that pacified imperial Rome’s populace; so, to the cheap vodka drastically shortening Russian life spans, it added lascivious license. Drunken stupor; moments of voluptuous rapture: that’s escape, not liberty. Continue reading →
What kind of nation did the Founders aim to create?
By Myron Magnet — July 3, 2015
Men, not vast, impersonal forces — economic, technological, class struggle, what have you — make history, and they make it out of the ideals that they cherish in their hearts and the ideas they have in their minds. So what were the ideas and ideals that drove the Founding Fathers to take up arms and fashion a new kind of government, one formed by reflection and choice, as Alexander Hamilton said, rather than by accident and force?
Signing of the Declaration of Independence, John Trumbull
The worldview out of which America was born centered on three revolutionary ideas, of which the most powerful was a thirst for liberty. For the Founders, liberty was not some vague abstraction. They understood it concretely, as people do who have a keen knowledge of its opposite. They understood it in the same way as Eastern Europeans who have lived under Communist tyranny, for instance, or Jews who escaped the Holocaust. Continue reading →
Trigger warning: may offend the illiberal or intolerant
Shut up or die. It’s hard to think of a more frontal assault on the basic values of Western freedom than al-Qaida’s January slaughter of French journalists for publishing cartoons they disliked. I disagree with what you say, and I’ll defend to the death my right to make you stop saying it: the battle cry of neo-medievalism. And it worked. The New York Times, in reporting the Charlie Hebdo massacre, flinched from printing the cartoons. The London Telegraph showed the magazine’s cover but pixelated the image of Muhammad. All honor to the Washington Post and the New York Post for the courage to show, as the latter so often does, the naked truth.
The Paris atrocity ought to make us rethink the harms we ourselves have been inflicting on the freedom to think our own thoughts and say and write them that is a prime glory of our Bill of Rights—and that its author, James Madison, shocked by Virginia’s jailing of Baptist preachers for publishing unorthodox religious views, entered politics to protect. Our First Amendment allows you to say whatever you like, except, a 1942 Supreme Court decision held, “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterances inflict injury or tend to incite an immediate breach of the peace,” though subsequent decisions have allowed obscene and profane speech. A 1992 judgment further refined the “fighting words” exemption, ruling that the First Amendment forbids government from discriminating among the ideas that the fighting words convey, banning anti-Catholic insults, for example, while permitting slurs against anti-Catholics. In other words, government can’t bar what we would now call “hate speech”—speech that will cause “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”
This expansive freedom prevails nowhere else on earth. European countries, and even Canada, have passed hate-speech laws that criminalize casual racial slurs or insults to someone’s sexual habits. An Oxford student spent a night in jail for opining to a policeman that his horse seemed gay. France, which has recently fined citizens for antigay tweets and criminalized calls for jihad as an incitement to violence—a measure that our First Amendment would allow only if the calls presented a “clear and present danger”—also (most improperly) forbids the denial of crimes against humanity, especially the Holocaust. The pope has weighed in as well, with the platitude that no one should insult anyone’s religion—or his mother. Continue reading →
Winter 2015
What Must We Think About When We Think About Politics?
Man is a political animal, but he is much more.
NATIONAL TRUST PHOTO LIBRARY/ART RESOURCE, NY
A headless body in a topless bar would not have surprised political philosopher Thomas Hobbes.
The late political scientist James Q. Wilson used to caution, with his elegant precision, that it’s not enough to have political opinions. You also need facts—which, for him and his brilliant colleagues at The Public Interest of the 1960s and 1970s, meant data. You think this policy will produce that outcome? Okay, try it—and then measure what happens. Did you reduce poverty? Raise test scores? And you had also better comb the data for consequences you neither expected nor intended, for all policies must stand or fall by the totality of their results. Remember, too, Wilson and his colleagues used to insist, that correlation is not causation: if two things alter more or less in tandem, that doesn’t by itself prove that one of the changes produced the other. They may be independent of each other, or some as-yet-unnoticed third force may have sparked both of them. Data don’t speak for themselves but require interpretation—which may or may not be correct. It’s art, not science.
This warning proved a powerful corrective to the liberal ideology about social policy that reigned in the 1960s—pious, unproved platitudes about “root causes” that gave birth to the War on Poverty, whose dire consequences, including an ever-more-deeply entrenched underclass, still bedevil America. But Wilson’s rigor tones up only one of the areas where political thought and discourse tend to be flabby. At least two more elements, well known to political philosophers since antiquity but often ignored today, are essential to intelligent political thinking. You have to have some understanding of psychology—of the minds and hearts that motivate the individuals who are the stuff of politics—and you have to know something about culture, the thick web of beliefs and customs that shape individuals and their social world at least as much as public policies do. Continue reading →
It’s Not Your Founding Fathers’ Republic Any More
Presidents, Congresses, and courts are creating an elective despotism.
How far have we distorted the Constitution that the Founders gave us, and how much does it matter? A phalanx of recent books warns that we have undermined our fundamental law so recklessly that Americans should worry that government of the people, by the people, and for the people really could perish from the earth. The tomes—Adam Freedman’s engaging The Naked Constitution, Mark R. Levin’s impassioned The Liberty Amendments, Richard A. Epstein’s masterful The Classical Liberal Constitution, and Philip K. Howard’s eloquent and levelheaded The Rule of Nobody (in order of publication)—look at the question from different angles and offer different fixes to it, but all agree that Americans need to take action right now.
Several benighted Supreme Court rulings subverted the Fourteenth Amendment and crushed President Lincoln’s dream of binding up the nation’s Civil War wounds with malice toward none and charity for all.
THE GRANGER COLLECTION, NYC
Before we scramble, though, we had better understand just what happened. There’s no single villain. As these books show, all branches of government conspired over more than a century to turn the Constitution that the Framers wrote in 1787, plus the Bill of Rights that James Madison shepherded through the first Congress in 1789 and the Fourteenth Amendment ratified in 1868, into something their authors would neither recognize nor endorse. Continue reading →
Myron Magnet
Liberty or Equality?
The Founding Fathers knew that you can’t have both.
Spring 2014
With the fulminating on the left about inequality—“Fighting inequality is the mission of our times,” as New York’s new mayor, Bill de Blasio, summed up the theme of his postelection powwow with President Barack Obama—it’s worth pausing to admire anew the very different, and very realistic, modesty underlying Thomas Jefferson’s deathless declaration that all men are created equal. We are equal, he went on to explain, in having the same God-given rights that no one can legitimately take away from us. But Jefferson well knew that one of those rights—to pursue our own happiness in our own way—would yield wildly different outcomes for individuals. Even this most radical of the Founding Fathers knew that the equality of rights on which American independence rests would necessarily lead to inequality of condition. Indeed, he believed that something like an aristocracy would arise—springing from talent and virtue, he ardently hoped, not from inherited wealth or status.
In the greatest of the Federalist Papers, Number 10, James Madison explicitly pointed out the connection between liberty and inequality, and he explained why you can’t have the first without the second. Men formed governments, Madison believed (as did all the Founding Fathers), to safeguard rights that come from nature, not from government—rights to life, to liberty, and to the acquisition and ownership of property. Before we joined forces in society and chose an official cloaked with the authority to wield our collective power to restrain or punish violators of our natural rights, those rights were at constant risk of being trampled by someone stronger than we. Over time, though, those officials’ successors grew autocratic, and their governments overturned the very rights they were supposed to protect, creating a world as arbitrary as the inequality of the state of nature, in which the strongest took whatever he wanted, until someone still stronger came along.
In response, Americans—understanding that “kings are the servants, not the proprietors of the people,” as Jefferson snarled—fired their king and created a democratic republic. Under its safeguard of our equal right to liberty, each of us, Madison saw, will employ his different talents, drive, and energy, to follow his own individual dream of happiness, with a wide variety of successes and failures. Most notably, Federalist 10 pointed out, “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.” That inequality would be a sign of the new nation’s success, not failure. It would mean that people were really free. Continue reading →
I spent Presidents’ Weekend in Orange, Virginia, celebrating the inauguration of the restored Old Library at Montpelier, at which I was thrilled to be the speaker. With its breathtaking view out to the Blue Ridge 17 miles away (and uncharacteristically snow-covered that February Sunday), the serene, sun-filled, second-floor room is where James Madison began preparing throughout the spring and summer of 1786 for the Constitutional Convention that opened on May 25, 1787. Indefatigably, Madison pored over hundreds of books that his best friend and Piedmont neighbor, Thomas Jefferson (then U.S. minister in Paris), had sent him by the crateful from the shops of Europe—tomes on history and political philosophy in English, French, and Latin that Madison felt sure would provide him with clues as to why earlier democracies and confederations had failed, so that he could outline a plan for an unprecedented, and unprecedentedly successful, large-scale democratic republic. He summarized his conclusions in a handwritten pamphlet, which he consulted often during the Convention’s debates, before mining it for three of the 27 Federalist Papers that he wrote. We revere Madison, properly, as the Father of the Constitution; it’s in this room, a sacred shrine of American liberty, that the shape of that immortal document first came into focus.
It was thrilling, too, to see the progress the Montpelier Foundation, now under the dynamic leadership of Kat Imhoff, has made on the restoration of Montpelier’s interior since the last time I saw the house in 2010. The entire project has been Herculean, given the mansion’s confusing evolution. Madison’s father, a rich, third-generation Virginia planter, had built the core of the house in the 1760s. A two-story, five-bay Georgian brick structure—that is, it had two windows on each side of its central front door—it was then Orange County’s biggest residence, commanding 5,000 acres of lush Piedmont farmland. When Madison married Dolley Payne Todd and temporarily retired from government in 1797, he added what was in effect an attached townhouse, three bays wide, to his parents’ residence. The result was a still-symmetrical eight-bay house, with three pairs of windows punctuated by two doorways. A new columned and pedimented portico embraced the two doorways and emphasized the house’s symmetry further.
Starting in 1809, during the first of his two presidential terms, Madison began building one-story wings on either side of the house, surmounted by roof terraces enclosed by Chinese Chippendale railings, all designed with advice from his friends Jefferson, Capitol architect William Thornton, and White House interior designer Benjamin Henry Latrobe. One wing housed a grand library; the other provided new quarters for his widowed mother, who lived with him and Dolley until she died at 97 in 1829. An imposing pedimented and fan-lit central doorway, with a new demi-lune window in the portico’s pediment directly above, provided a stately presidential focal point for the perfectly balanced mansion.
Montpelier’s evolution from the 1760s to 1797 to 1810
Of course big changes took place in the interior as well over that half-century. Madison’s 1797 addition had a first floor entirely separate from his parents’, in order to give him and his little household—Dolley, Dolley’s young son from her first marriage, and Dolley’s youngest sister—some privacy, and perhaps to spare the elder Madisons some childhood commotion as well. The second floor, reached by separate staircases for each generation, was all interconnected, however. Madison’s presidential expansion of the house broke down the first-floor barrier, created a splendid drawing room suitable for presidential receptions, and added a sumptuous chimneypiece to the dining room. Adorning the dinner table, which could seat 18, was a service of Vieux Paris pocelain, bought from the Nast factory in 1806.
This complex evolution is easy to relate, but it took years of painstaking effort by restorers to reconstruct it. Why? Because in 1901, gunpowder and chemical magnate William du Pont, Sr., bought the house, already repeatedly altered from the moment an impoverished and widowed Dolley had to sell it in 1844, and he swallowed up the remains of Madison’s mansion in a gargantuan enlargement from 22 rooms to 55, smashing through chimney-pieces, paneling, and other impediments in the process. His daughter Marion turned the house into the hub of a thoroughbred horse-breeding and horse-racing enterprise, installed an art-deco living room, more garish than stylish, in Mother Madison’s quarters, and dug out the cellar to build a gym for her husband, cowboy-movie-idol and Cary Grant’s longtime close friend and California housemate, Randolph Scott. The result was a hulking pink-stucco bunker with a metal roof. As a stab at comely proportion, the du Ponts lengthened the portico columns to the ground; they had originally sprung from the top of the stairs. It’s only justice to add that Mrs. Scott left money in her will, and instructions to her heirs, that helped put Montpelier right.
The du Ponts’ mansion
I first saw the house in 2007, when restorers had demolished most of the du Pont additions, chipped off the stucco to reveal the warm rose-colored handmade brick of the original house, recreated the early-nineteenth-century presidential floor plan, and removed the waterlogged du Pont plaster from the interior, leaving only the original laths, hand-cut between the 1760s and 1810 or ’12, when Madison’s final renovation was complete. Walking through Montpelier then was an eerie experience, since I could see between the laths from room to room to room, as if I were in a ghost house. By then, restorers had moved Marion duPont Scott’s art deco extravaganza to a visitor center.
When I returned three years later, restoration chief John Jeanes showed me how his crew had plastered the interior with the original lime, sand, and horsehair formula, and re-roofed the house with 30,000 hand-carved old-growth cypress shingles, copied from some original cedar ones found in the attic—but so much tougher that the new roof, Jeanes predicted, would last 100 years. He showed me too how careful removal of layers of paint on the sides of the window frames had revealed the outlines of the original chair rails, so his team could reproduce them precisely. One of the second-rate old-master paintings that had adorned the drawing room hung in its original position, and copies of the others, along with portraits of Madison’s Founding Father colleagues, hung where the originals had been. Some pieces of the old house had turned up during the restoration—a hearthstone that had fallen into the basement, for instance, a doorway that the duPonts had relocated—but the few bits of furniture in the rooms only punctuated their emptiness, since Dolley’s wastrel son, a drunkard and gambler whom Madison once bailed out of debtors’ prison, had sold off most things of value after his stepfather’s death.
The intervening four years have produced a miraculous change. Furniture said to have belonged to the Madisons has poured in from eager donors, and many pieces, after rigorous vetting, have turned out to be genuine. Museums have loaned Montpelier items known to have come from the house. Every furnished room displays original Madison pieces, from the two sideboards in the dining room to a tea table in Mother Madison’s sitting room that she probably acquired even before she and her husband built Montpelier. An original Montpelier chimneypiece turned up in a nearby farmhouse and is now back where it belongs.
The enslaved Paul Jennings stands behind the Marquis de Lafayette in Montpelier’s dining room.
From poring over documents, restorers had a fairly detailed idea of what was in the house during the Madisons’ period, and, in cases where original pieces had vanished completely, they often could replace them with almost identical ones. Madison had bought a square piano from a Philadelphia maker in 1794, for example, and Montpelier now has one made by the same firm that very year. The house displays an ivory chess set identical to the original one, of which only a few pawns turned up in a Montpelier rubbish heap, and a mahogany case of plaster portrait-medallions of philosophers, made by the same Italian craftsman who made the Madisons’ now-lost set, stands near it in the drawing room. The Madisons owned some painted Louis XVI drawing-room chairs that they had probably bought when George Washington auctioned off some of his presidential furniture on his retirement to Mount Vernon at the end of his second term. Washington had bought the originals, made by a Parisian cabinet maker named Lelarge, from a departing French ambassador, and he had a Philadelphia craftsman make copies to enlarge the set. Six of the Madisons’ chairs still exist in various collections, including one at Montpelier. Some are French, one complete with Lelarge’s stamp; some are President Washington’s American copies. The Montpelier Foundation has recently bought ten almost identical ones, stamped Lelarge, to adorn the drawing room.
Jefferson’s portrait hangs above James and Dolley Madison’s in the newly restored drawing room, with its Lelarge chairs. One of Madison’s old master paintings in the drawing room
During the restoration, a workman on a tall ladder found a bit of red flocked wallpaper stuck to the top of a drawing-room window frame, though the thumbnail-sized scrap was too small for curators to make out what the original pattern was. Reasonably, they chose a red-flocked pattern popular in the early nineteenth century. A two-century-old mouse’s nest found inside one wall contained a scrap of a letter in Madison’s hand and some threads of crimson silk—evidence for restorers to surmise that this was most likely the crimson of the silk damask that Dolley had ordered from France in 1816 for the curtains and upholstery of Montpelier’s drawing room, now reproduced in fabric and color, if not in pattern. Tack holes in the drawing-room and dining-room window frames suggested how the curtains originally hung; but no shred of evidence remains for the pattern of the dining-room curtains or wallpaper, though it’s hard to imagine that the flamboyance the restorers chose would have displeased the exuberant Dolley.
Drawing Room Curtains
And finally, the Old Library—the goal of my pilgrimage—has got some 900 of its 4,000-odd books back. They’re not Madison’s originals, but they are the same works, largely in the same editions he owned—from Cicero’s writings and Bacon’s essays to Locke’s Essay Concerning Human Understanding and Adam Smith’s The Wealth of Nations. “The past should enlighten us on the future,” Madison once wrote: “knowledge of history is no more than anticipated experience.” In these volumes is enshrined some of the knowledge that informed our Constitution. The ink splatters Madison made while taking notes on them—original splatters, not copies—still adorn the heart-pine floorboards of the hushed room, where Madison listened to such great effect to the eloquent voices of our civilization’s sages.
Photographs courtesy of The Montpelier Foundation
Americans have long treasured their right to worship as they choose.
By
MYRON MAGNET
Wall Street Journal, Nov. 26, 2013 7:18 p.m. ET
In the fall of 1621, some 50 of the Puritans who had left the Old World in search of religious freedom sat down in their tiny thatched hamlet of Plymouth with their Wampanoag neighbors to feast on turkey, venison, corn and cod. They also gave thanks for surviving their first terrible New England winter, whose cold and privation had carried off half their community.
Continual waves of pilgrims fleeing religious persecution would follow them across the sea. Their sense of providential escape from foreign oppression stayed vividly alive in the American memory, and ultimately helped guide the Founding Fathers to make a revolution and fashion a new kind of government.
Hard as it is to believe at this distance of time, British law once jailed non-Anglican Protestants like the Pilgrims for worshiping as they chose. The law also barred them from the universities and public office. Thousands of Congregationalists, Baptists, Quakers and others left their native land, bringing to the New World their Dissenting tradition of self-government, individualism and personal responsibility. They had long run their own congregations, hired and fired their own ministers, read the Bible and freely judged its meaning for themselves. They believed that each individual has a direct relation to God independent of, and higher than, any worldly authority.
As late as the 1750s, Constitution-signer William Livingston was still reminding readers of his influential magazine, The Independent Reflector, how “the countless Sufferings of your pious Predecessors for Liberty of Conscience, and the Right of private Judgment” drove them “to this country, then a dreary Waste and barren Desert.”
Decades later, Chief Justice John Jay wrote a gripping account of how his grandfather, a French Protestant, had returned home from a trading voyage abroad in 1685 to find his family and neighbors gone, their church destroyed. While he had been away, Louis XIV of France revoked the Edict of Nantes, which had extended religious toleration and civil rights to Protestants for almost a century. Jay’s grandfather was lucky to be able to sneak aboard one of his ships and, like many others, sail away to freedom in the New World.
With this long history, Americans have had an almost physical thirst for liberty, as people do who truly know its opposite, like Eastern Europeans who once lived under communist tyranny. Long before Emma Lazarus wrote her Statue of Liberty verses about the huddled masses yearning to breathe free, George Washington noted that for “the poor, the needy, & the oppressed of the Earth,” America was already “the second Land of promise”—the Promised Land. It offered, said James Madison, “an Asylum to the persecuted and oppressed of every Nation and Religion.”
That thirst for liberty led the Founders to revolt when they thought that George III was squeezing upon them the tyranny that had crushed their forebears. It also led them to hedge their new government with every safeguard to keep them free.
To protect life, liberty and property from what they called the depravity of human nature—from man’s innate capacity for inhumanity to others—the Founders knew they needed some kind of government armed with power. But since the officials who wield such power have the same fallen human nature as everyone else, who can be sure that they won’t use it to oppress others? Who can guarantee that imperfect men wouldn’t turn even the democratic republic the Founders were creating into what Continental Congressman Richard Henry Lee called an elective despotism?
The Constitution they wrote in the summer of 1787 explicitly limited government’s powers to what they deemed absolutely essential. They divided and subdivided power, and they made each branch of government a watchdog over the others. But they also recognized that constitutions are only what they called “parchment barriers,” easily breached if demagogues subvert the “spirit and letter” of the document.
In the first State of the Union address, George Washington stressed that the ultimate safeguard against such a danger is a special kind of culture, one that nurtures self-reliance and a love of liberty. “The security of a free Constitution,” he said, depends on “teaching the people themselves to know and to value their own rights; to discern and provide against invasions of them.”
If citizens start to take liberty for granted, he said, the spirit that gives life to the Constitution will flicker out, for “no mound of parchm[en]t can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other.”
It’s that culture of liberty we nourish by recalling that our forebears came to these shores in search of freedom—and by giving thanks that they found it.
Mr. Magnet is editor-at-large of the Manhattan Institute’s City Journal. His new book is “The Founders at Home: The Building of America, 1735-1817” (Norton).
By Myron Magnet
Published November 18, 2013
FoxNews.com Library of Congress
Though the Founding Fathers made a revolution because they hated the idea of taxation without representation, soon after independence they recognized that taxation with representation could be tyranny too. That’s the whole point of James Madison’s famous warning about the tyranny of the majority in Federalist 10.
Yes, a democratic republic is the best form of government, he knew; but there’s always the danger that a democratic majority will illegitimately invade the natural and inalienable rights that government exists to protect — the right to life, liberty, and property.
The most likely form such an invasion of natural rights would take, Madison predicted, is the robbery of the propertied few by the unpropertied many, whether by unjust taxation, by debasement of the currency — which silently transfers wealth from creditors to debtors — or by a government-enforced abolition of debts or equal division of property, as the leaders of Shays’s Rebellion demanded in 1786 when they couldn’t pay their mortgages. The Continental Congress sent troops to put the rebels down by force.
That’s why, as the chief architect of the Constitution hammered out in Philadelphia the following year, Madison designed his mechanism of checks and balances. His main concern was to prevent the emergence of what Continental Congressman Richard Henry Lee had once called an “elective despotism.” (One sure sign you were living in one, Madison wrote, is if legislators ever dared pass laws from which they exempted themselves.)
In a genuinely free society, Madison observed in the Federalist, you will always have inequality. People have different talents, different ambitions, different levels of energy and willpower, different ideas of the happiness they are free to pursue. With liberty to exercise what skill and drive you have, some will grow richer than others. And liberty was all the American Revolution set out to achieve. It was the unsuccessful French and Russian Revolutions that promised equality and fraternity.
When the new government under the Constitution got under way, Treasury Secretary Alexander Hamilton immediately designed a financial system to make the most of that liberty. Given that people have different talents and ambitions, he aimed to create a highly diversified economy that would allow people to develop those talents to the fullest extent possible. Everyone would have a chance to find his own niche and make the most of whatever vision and special potentialities lay within him.
Such a free economy would create a wealthy society, to be sure. But it was also an instrument of soulcraft, allowing individuals to become everything that they had it within themselves to become — something you can’t do if being a farmer or a shop clerk or a cog in the state machine are the only choices open to you.
So what would the Founders say if they saw trillions of dollars being taxed away from society’s productive members to provide means-tested benefits to around a third of the population?
What would they say if a family of four — grandma, mom, and two kids, say — lived without working in subsidized housing on welfare, food stamps, Medicaid, and other benefits that cost taxpayers over $40,000 a year — more than a minimum-wage job pays?
And what would they say about a society that supported generation after generation of such families on income taxes that 10 percent of the population pays 70 percent of, and that nearly half the population doesn’t pay at all?
They would be horrified by the injustice of such tyranny of the majority, of course. But they would be no less horrified by the waste of lives that never even try to reach their full potential. This is what millions have done with the liberty that the Founders pledged their lives, their fortunes, and their sacred honor to win?
Myron Magnet is a recipient of the National Humanities Medal. He is editor-at-large for City Journal. His new book, The Founders at Home: The Building of America, 1735-1817 , is just out from W. W. Norton.
