The Theory of the American Founding, Part One: Why Government?
In the summer of 1787, 55 delegates from the various states (except Rhode Island) met in Philadelphia for the
Constitutional Convention. These delegates included some of the brightest and most talented men of the day,
such as Ben Franklin, James Madison, Alexander Hamilton, and, of course, George Washington, who was chosen
by his fellow delegates to preside over the meetings. Confronted with the abject failure of the Articles of
Confederation, the primary concern for these delegates was to design a new Constitution, which in turn would
give rise to a new form of government in America. But, at first sight, there seems to be something of a
contradiction between the attempt to form any kind of government and the ideas of the Revolution as enshrined
in the Declaration of Independence: For, if all men are born equally free, then why should not each man
exercise his freedom however he chooses? Why should there be any government at all -- with laws and
punishments for breaking the law -- that restricts man’s natural freedom? If man is free by nature, should not
he be allowed to make his own rules, instead of following the rules of others? In short, if the principles of the
Declaration are true, why does man need government?
The first place to begin is to examine what the Founders meant, and did not mean, by the terms “liberty” and
“freedom.”
America was the first nation in human history founded upon an idea, the idea of political freedom. This idea is
rooted in the fact that by nature, every human being possesses equal rights, and, by nature, every human being
is born equally free. The Massachusetts Constitution of 1780 – which expressed a view commonly held during
the American Founding period – begins with a “declaration of rights,” which states, “All men are born free and
equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of
enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine,
that of seeking and obtaining their safety and happiness.”
By nature, then, there is no social hierarchy among humans—no principle of who rules and who gets ruled—as
there is among the rest of the animal kingdom. This is the simple meaning of the proposition that “all men are
created equal.” But for the Founders, freedom did not mean the freedom to do whatever one pleases. Humans
are free because, unlike the lower animals that possess only instinct or passion, humans possess reason as well.
Our freedom stems from the fact that we can use our reason and think freely, and by doing so we demonstrate
that we are not enslaved to our passions. Man acts freely when he acts according to his reason and does what is
right. But when man acts licentiously – when he does things he knows to be wrong, such as violating the rights
of others, or acting irresponsibly and not taking care of one’s self and one’s family – he is no longer acting
freely, he is rather acting as a slave to his passions and instincts. As Samuel West, a Revolutionary-era
preacher, explained, “where licentiousness begins, liberty ends.” Or as Jefferson once wrote, man is free “from
all but the moral law.”
Freedom or liberty, then, was never understood by the Founders to mean licentiousness, or immorality.
Freedom was always understood in the light of the moral obligations imposed by the “laws of nature and of
nature’s God” referred to in the Declaration. But the fact that some men believe freedom means they can do
whatever they choose, even if they choose to follow their greedy and selfish passions and violate the rights of
others, indicates the needs for government.
The Founders explained this problem by reference to the idea of the “state of nature,” which was central to the
political teaching of the American Founding. The state of nature is how men live prior to the formation of
government: the state of nature is men living among other men without government and without the protection
of laws. The problem with the state of nature is that while every man possesses the same rights and liberties by
nature, those rights are insecure without government. The stronger always tend to violate the rights of the
weaker. In the state of nature there is nothing to prevent the stronger from taking the property of the weaker,
or enslaving the weaker. But even the stronger are not always protected, as sometimes the weaker might band
together and destroy the stronger. So it is in the interest of all citizens to leave the state of nature, and form a
government that will protect the rights of each.
In Federalist 51, James Madison explained the relationship between the state of nature and government by
raising the following question: “But what is government itself but the greatest of all reflections on human
nature? If men were angels, no government would be necessary.” If men were angels – that is, if men were
wholly good and wholly reasonable – there would be no need for government, because every man would behave
morally and would respect the rights of others without government or law. But men are not angels. In addition
to his reason, man possesses selfish passions, and sometimes men will follow their passions and hurt other
men. Thus there is a need for some way to restrain those selfish passions. The answer is government. The need
for government stems from human nature itself, by the fact that humans by nature are not wholly good, but
capable of both good and evil. The purpose of government is to encourage the good tendencies of human
nature, and discourage or regulate the bad. As Madison wrote in Federalist 49, “the reason of the public alone
ought to control and regulate the government,” but in turn the government ought to control and regulate “the
passions” of the people.
Thus we see the need for and purpose of government: to protect the rights which all men possess by nature,
and to encourage men to act rationally and good.
Discussion questions:
What was the primary concern for the delegates to the Constitutional Convention of 1787?
What is the apparent contradiction between the idea of natural freedom and the idea of government?
According to the Massachusetts Constitution of 1780, men are born ________ and ________. What are some of
the unalienable rights they are born with?
From the point of view of the Founders, does freedom mean doing whatever one pleases?
What is the “state of nature?” What is the problem with the state of nature?
Why is government necessary for human beings?
The Theory of the American Founding, Part Two: Why Government by
Consent?
Americans today take for granted the idea that government ought to rule only with the consent of the governed.
Sometimes we forget how radical this idea was at the time of the American Founding, and still is today. Prior to
the American Founding, a government of majority rule and minority rights -- that is, a government in which
those who live under the laws have a share in making the laws they live under -- had never been attempted.
The principle of government by consent is set forth with unrivaled clarity and eloquence in the Declaration of
Independence, and is elaborated in many other documents from the American Founding. We turn to such
documents not simply to study history, but because it is in our interest as citizens to understand the principles
and conditions necessary for the preservation of free government.
Throughout human history, most governments have operated without the consent of the governed. Kings,
Emperors, and Pharaohs have claimed special dispensation from God that supposedly authorized them to rule
over other men without their consent. But in America, such traditions were rejected.
America is based on a radical, yet simple, idea: human equality. As the Declaration of Independence begins,
"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." Human beings
are unequal, or different, in many ways: some are tall, some short; some beautiful, some ugly; some smart,
some ignorant; some virtuous, some vicious. But in their possession of the natural rights to life, liberty, and the
pursuit of happiness, among others, all human beings are equal.
From this fact of human equality, a fact rooted in nature -- or a self evident truth as it is described in the
Declaration of Independence -- spring key moral and political implications. As the Declaration goes on to state,
"That to secure these rights, governments are instituted among men, deriving their just powers from the
consent of the governed...." If all men are equal with respect to their natural rights, then no man can
legitimately or justly rule over another without the other's consent. Tyrannical rule, or rule without consent, is
"unnatural" in this sense -- it violates nature as a moral standard of how men ought to live and treat one
another. Tyranny in all its forms, including human slavery, violates the principle of equality of natural rights
shared by all men.
In the Preamble of the Massachusetts Constitution of 1780 the idea of government by consent is expressed in
these terms: "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." Good government is government that is founded on a "social
compact," where each citizen agrees with the whole, and the whole agrees with each citizen, to be governed by
laws directed toward the common good of the people.
Thus, government by consent is first and foremost a moral principle. That is, just as no person who does not
wish to be a slave should enslave another, so governments should not rule without the consent of the governed.
The moral justification for individual freedom and the moral justification of government by consent stem from
the same moral source: the principle of natural human equality. This is what George Washington meant in his
First Inaugural Address when he said that, "the foundation of our national policy will be laid in the pure and
immutable principles of private morality." The principles of private morality are immutable because they are
derived from human nature, which never changes, and which provides the eternal standard of the rightness of
government by consent.
Frequently a government or a particular ruler attempts to rule over people without their consent. The
Declaration says that "...whenever any Form of Government becomes destructive of these Ends (protecting
rights and operating by consent), 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." This "Right of the People" is the right of revolution,
which underlies all other rights. The right of revolution exists because it is a necessary safeguard against
tyranny.
But no government is perfect because all governments are run by imperfect human beings. A people can invoke
the right of revolution legitimately only when the government under which they live consistently violates their
rights. As the Declaration says, revolutions should not be started for "light and transient causes." But when a
government engages in a "long train of abuses and usurpations," and demonstrates "a design to reduce (the
people) under absolute despotism," then it becomes both the right and the duty of the people to "throw off such
government, and provide new guards for their future security."
The only legitimate government is a government that protects the rights of individuals and operates with the
consent of the governed. When a government fails to get the consent of the governed, or when it violates the
rights of the people, the people are justified in exercising their natural right of revolution and instituting a new
government.
Discussion questions:
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9.
What had never been attempted before the American Founding?
Why is it important to learn about the idea of government by consent?
How did most governments and rulers operate prior to America?
What is the basis of the American idea of government by consent?
Name three ways in which human beings are unequal, or different. Can you think of other ways people
are different?
In what way are all human beings equal?
What does equality tell us with regard to how government should rule?
What term is used in the Massachusetts Constitution to describe government by consent?
What right can be invoked if a government fails to get the consent of the governed, or violates the
rights of the people?
The Theory of the American Founding, Part Three: Why Equal Protection of
the Law?
The cornerstone of the American political system is the principle of human equality enshrined in the Declaration
of Independence. The Declaration begins with a simple yet profound articulation of this principle: "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." All human beings possess
equally the natural rights to life, liberty, and the pursuit of happiness.
The Declaration goes on to state the purpose of government: "That to secure these rights, governments are
instituted among men, deriving their just powers from the consent of the governed..." Since all men possess
equal rights by nature, the purpose of government is to secure those rights.
The purpose of government - securing rights - points to the inherent limits placed on a just government. That is,
if the purpose of government is to protect rights, then government must be limited to those things necessary for
the protection of rights. If the government itself becomes too large and powerful, it becomes a threat to the
rights and liberties of the people, the very things government is supposed to protect. This underlies Madison's
famous statement in Federalist 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."
Madison's point is that human nature is not angelic: human beings are not wholly good. Sometimes they follow
the baser elements of their nature and violate the rights of others. Thus government is instituted to protect its
citizens against those who would violate their rights. But at the heart of the idea of just government lies a great
difficulty: government must be at once strong enough to protect our rights, but not so strong that it threatens
our rights. That is, we must first give the government the powers necessary to control the governed, and then
ensure that the government controls itself. The solution to this difficulty is limited constitutional government.
We know that the purpose of government is to protect rights; therefore we know that government should be
limited in its powers. That is, based on the principles of the American Founding, legitimate government has only
the power necessary to affect its end: the protection of our rights. In order to limit the powers of the
government, the Founders offered a written constitution which specifies what government ought to do, and what
it ought not do. This idea of limiting the powers of the government defines the structure of the American
Constitution. For example, Article I, Section 8 of the Constitution enumerates the powers of the legislative
branch of government, while the next section, Article I, Section 9 places restrictions on the power of the
legislature. Article I, Section 10 then goes on to place restrictions on the powers of the various state
governments.
Furthermore, as citizens we can know what the proper duties of the government are by referring to the
fundamental law of the land, the Constitution. This idea of living under a written constitution is what is
sometimes called "constitutionalism."
In a constitutional regime such as America, how should the government act towards citizens? Even if the
government is exercising some power that is granted by the Constitution, should government be able to make
arbitrary distinctions between citizens, and treat them differently? Here we must remind ourselves of the
purpose of government: to protect the equal natural rights of all citizens.
The American constitutional system is based on the idea that the law, not individual men, reign supreme over
both the government and over citizens. Put another way, we want government and society to act according to
the rule of law. Society is best governed by the rule of law, rather than the arbitrary will of men, because law
represents the reason of men divorced from the passions of men, and it aims at the common good of all
citizens, not the good of one man or one group of citizens. The law is superior to the government in the sense
that government can only do those things that the law (the Constitution) permits. At the same time, when
government exercises power over citizens, it must do so by general laws that apply equally to all citizens
similarly situated. If the purpose of government is to protect the rights of citizens, and all citizens possess equal
rights by nature, then the government must treat citizens equally by passing general laws.
As Supreme Court Justice Harlan wrote in his dissenting opinion in the case Plessy vs. Ferguson, "In view of the
Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There
is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In
respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful."
If government is to protect the equal rights of citizens, it must offer every citizen the equal protection of the
law. This kind of rule, and only this kind of rule - the rule of laws that offer equal protection - is compatible with
the idea of human equality and equal natural rights.
Discussion questions:
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By knowing the purpose of government, what else do we know about government?
What is the difficulty that lies at the heart of the idea of government?
Why do we need to limit the power of government?
How do we limit the power of government?
What does “constitutionalism” mean?
By what rule should government exercise power over citizens?
Why should government offer every citizen the equal protection of the law?