Saturday, July 02, 2016

Independence Day 2016

At the close of the Constitutional Convention of 1787, anxious Philadelphians reportedly gathered outside Independence Hall after the proceedings ended in order to learn what had been produced behind closed doors. A Mrs. Powel asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” Without any hesitation, Franklin responded, “A Republic, if you can keep it.”

Perhaps the story is apocryphal, but nonetheless it is a good one to have in mind on Independence Day.

Without doubt, Americans have faced far more trying times than those we face today. No need to recount them here. But during this election year, there is no doubt as well that many Americans are dissatisfied with the direction in which our country is headed and fearful about its future prospects. And very many – myself included – are dissatisfied with the choices we likely will have this election day to fill the highest office in the land.

The rule of law, the fabric that binds together our constitutional Republic seems strained. Take but this one prominent yet striking example: In 2014, President Obama rejected entreaties, as he had done many times before, to essentially rewrite the substance of the nation’s immigration laws through executive action. In doing so, he declared: “I am President. I am not king. I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen.” Then, less than a year later, President Obama asserted authority to take executive action to do exactly what he previously had expressly declared he lacked authority to do. Just like an ancient English king – “just by myself” –exercising the royal prerogative.

What are we to make of such political maneuvering that smacks so much of an “ends justify the means” modus operandi or mentality?

In this environment, the rule of law is undermined. You can hear the echoes of Franklin’s admonition: “A Republic if you can keep it.”

More than any other single person, James Madison was responsible for the Constitution’s drafting. So, on Independence Day, it’s worth considering what this foremost Founder might think about our current state of affairs in the context of the constitutional Republic created at the 1787 Convention. A good starting point is Federalist No. 51, where Madison asked: “But what is government itself but the greatest of all reflections on human nature?” Madison supplied one answer to this famous rhetorical question immediately after asking it:

“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.”

In Federalist No. 10, Madison wrote darkly of the “ambition” of men, their “mutual animosities” and “unfriendly passions,” and, indeed, their propensity “to vex and oppress each other.” He recognized that both individuals and interests – or “factions” as he put – naturally would seek to gain the upper hand by aggrandizing their power. And relevant to this election year, Madison warned against “unworthy candidates” who practice “the vicious arts by which elections are too often carried.”

So Madison set about to devise a government that would take into account this understanding of human nature. To counteract the effects of faction and preserve popular government, he conceived a system of separate and diffused powers, a federalist system in which “ambition” would counteract “ambition.” Or, as he put it in Federalist No. 51, a plan “of supplying by opposite and rival interests, the defect of better motives. . . .”

But Madison understood that even though he and his Constitution-making colleagues had framed a government designed to provide the best opportunity for free institutions to survive the machinations of ambitious men, and even unworthy candidates, democracy’s survival ultimately depends on something more than the structural design laid out in a paper document. It depends as much on a shared understanding between our leaders and citizens that there are lines in our politics that should not be crossed, or else people will lose respect for the rule of law that undergirds the institutions created by the paper document.

Given Madison’s understanding of the dark side of human nature, what basis is there to hope that prudential lines in our politics will not be crossed and the rule of law will be respected, especially in times when passions run high? Madison rested his hopes on what he perceived to be a duality in our natures, the existence of a noble side to rise above, if need be, the dark side.  Thus, shortly after he wrote about the unfriendly passions and unbridled ambitions that drive men, he wrote in The Federalist No. 55:

“[S]o 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 jealously 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. . . .”

Along with the diffusion of powers built into the Constitution’s structure, it was Madison’s trust in what is sometimes called “republican virtue” (note the small r) upon which he rested his hopes. Back home in Virginia urging ratification of the proposed Constitution, he again emphasized republican virtue:

“I go on this great republican principle: that the people will have virtue and intelligence to select men of virtue and intelligence. . . . No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without virtue in the people is a chimerical idea.”

On this Independence Day, it’s worth taking time to reflect on Benjamin Franklin’s admonition: “A Republic, if you can keep it.” To keep it, we must demand that our leaders act with honesty, prudence, responsibility, and respect for the rule of law – in other words, with republican virtue.

And we must demand as much of ourselves as well.
PS – Best wishes from the Free State Foundation family to you and yours for a safe and happy Independence Day!

PPS – My previous Independence Day messages are here: 2007, 2008, 2009, 2010, 2011, 2012, 2013,  2014, and 2015.