FIVE

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LIBERTY AND REPUBLICANISM

THIS LEADS US TO the next related and essential area of inquiry—what do we mean by human and individual freedom and how do we apply them in the context of what has been discussed thus far? While these issues are too large for an all-inclusive dissertation, they require concentrated treatment.

On April 4, 1819, in a letter replying to Isaac H. Tiffany, Thomas Jefferson succinctly described liberty: “Of liberty then I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.”¹ In this short statement, did Jefferson capture the essence of liberty?

Let us begin with John Stuart Mill, a distinguished British philosopher. I start here not because Mill had any influence on the Founders (an impossibility since he lived from 1806 to 1873) but because his utilitarian-libertarian writings are useful in understanding, developing, and discussing what is meant by liberty, a subject more multifaceted than one might at first imagine. Mill’s book On Liberty (1859) has been prominent since its publication. He asked: “What . . . is the rightful limit to the sovereignty of the individual over himself? Where does the authority of society begin? How much of human life should be assigned to individuality, and how much to society?” Mill answered, in part, that “every one who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be found to observe a certain line of conduct towards the rest. This conduct consists, first, in not injuring the interest of one another; or rather certain interests, which, either by express legal provision or by tacit understanding, ought to be considered as rights; and secondly, in each person’s bearing his share (to be fixed on some equitable principle) of the labors and sacrifices incurred for defending the society or its members from injury and molestation. . . . Nor is this all that society may do. . . . As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion. But there is no room for entertaining any such question when a person’s conduct affects the interests of no person besides himself, or needs not affect them unless they like. . . . In all such cases there should be perfect freedom, legal and social, to do the action and stand the consequences.”²

Mill explained further that his utilitarianism is not a philosophy of isolated individualism or social disinterest: “It would be a great misunderstanding of this doctrine, to suppose that it is one of selfish indifference, which pretends that human beings have no business with each other’s conduct in life, and that they should not concern themselves about the well-doing and well-being of one another, unless their own interest is involved. Instead of any diminution, there is need of a great increase in disinterested exertion to promote the good of others. But disinterested benevolence can find other instruments to persuade people of their good, than whips and scourges, either of the literal or metaphorical sort. . . .”³ However, Mill added that “neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do. He is the person most interested in his own well-being; the interests which any other person, except in cases of strong personal attachment, can have in it, is trifling, compared with that which he himself has; the interest which society has in him individually (except as to his conduct to others) is fractional, and altogether indirect. . . . Individuality has its proper field of action. In the conduct of human beings towards one another, it is necessary that general rules should for the most part be observed, in order that people may know what they have to expect; but in each person’s own concerns, his individual spontaneity is entitled to free exercise. Considerations to aid his judgment, exhortations to strengthen his will, may be offered to him, even obtruded on him, by others; but he, himself, is the final judge. All errors which he is likely to commit against advice and warning, are far outweighed by the evil of allowing others to constrain him to what they deem his good.”⁴

However, for Mill the ultimate end for the individual and society is happiness. In his 1863 essay, Utilitarianism, Chapter 2, he wrote: “The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure. To give a clear view of the moral standard set up by the theory, much more requires to be said; in particular, what things it includes in the ideas of pain and pleasure; and to what extent this is left an open question. But these supplementary explanations do not affect the theory of life on which this theory of morality is grounded—namely, that pleasure, and freedom from pain, are the only things desirable as ends; and that all desirable things (which are as numerous in the utilitarian as in any other scheme) are desirable either for the pleasure inherent in themselves, or as means to the promotion of pleasure and the prevention of pain.”⁵

Some criticized Mill’s view as entirely hedonistic, to which Mill replied in Utilitarianism, Chapter 4:

The utilitarian doctrine is, that happiness is desirable, and the only thing desirable, as an end; all other things being only desirable as means to that end. . . . But does the utilitarian doctrine deny that people desire virtue, or maintain that virtue is not a thing to be desired? The very reverse. It maintains not only that virtue is to be desired, but that it is to be desired disinterestedly, for itself. Whatever may be the opinion of utilitarian moralists as to the original conditions by which virtue is made virtue; however they may believe (as they do) that actions and dispositions are only virtuous because they promote another end than virtue; yet this being granted, and it having been decided, from considerations of this description, what is virtuous, they not only place virtue at the very head of the things which are good as means to the ultimate end, but they also recognize as a psychological fact the possibility of its being, to the individual, a good in itself, without looking to any end beyond it; and hold, that the mind is not in a right state, not in a state conformable to Utility, not in the state most conducive to the general happiness, unless it does love virtue in this manner—as a thing desirable in itself, even although, in the individual instance, it should not produce those other desirable consequences which it tends to produce, and on account of which it is held to be virtue. This opinion is not, in the smallest degree, a departure from the Happiness principle. The ingredients of happiness are very various, and each of them is desirable in itself, and not merely when considered as swelling an aggregate. The principle of utility does not mean that any given pleasure, as music, for instance, or any given exemption from pain, as for example health, is to be looked upon as means to a collective something termed happiness, and to be desired on that account. They are desired and desirable in and for themselves; besides being means, they are a part of the end. Virtue, according to the utilitarian doctrine, is not naturally and originally part of the end, but it is capable of becoming so; and in those who love it disinterestedly it has become so, and is desired and cherished, not as a means to happiness, but as a part of their happiness.⁶

The Declaration of Independence states that among the individual’s “unalienable Rights” are “Life, Liberty and the pursuit of Happiness.” It would seem that happiness, properly understood, coupled with virtue, was also a critical factor in the Founders’ comprehension of liberty. For example, on December 10, 1819, in a fascinating letter to John Adams, Jefferson, while reflecting on the reasons for the demise of the Roman Empire, described the basic elements of liberty and good government, with an emphasis on a virtuous people:

I have been amusing myself latterly with reading the voluminous letters of Cicero. They certainly breathe the present effusions of an exalted patriot, while the parricide Caesar is left in odious contrast. When the enthusiasm however kindled by Cicero’s pen & principles subsides into cool reflection, I ask myself what was that government which the virtues of Cicero were so zealous to restore, & the ambition of Caesar to subvert? And if Caesar had been as virtuous as he was daring and sagacious, what could he, even in the plentitude of his usurped power have done to lead his fellow citizens into good government? I do not say to restore it, because they never had it, from the rape of the Sabines to the ravages of the Caesars. If their people indeed had been, like ours, enlightened, peaceable, and really free, the answer would be obvious—“restore independence to all your foreign conquests, relieve Italy from the government of the rabble of Rome, consult it as a nation entitled to self-government, and do its will.”

But steeped in corruptive vice and venality as the whole nation was, (and nobody had done more than Caesar to corrupt it) what could even Cicero, Cato, Brutus have done, had it been referred to them to establish a good government for their country? They had no ideas of government themselves but of their degenerate Senate, nor the people of liberty, but of the factious opposition of their tribunes. They had afterwards their Titusses, their Trajans, and Antoninuses, who had the will to make them happy, and the power to mould their government into a good and permanent form. But it would seem as if they could not see their way clearly to do it. No government can continue good but under the control of the people: and their people were so demoralized and depraved as to be incapable of exercising a wholesome control. Their reformation then was to be taken up ab incunabulis [from infancy]. Their minds were to be informed, by education, what is right & what wrong, to be encouraged in habits of virtue, & deterred from those of vice by the dread of punishments, proportioned indeed, but irremissibly; in all cases to follow truth as the only safe guide, & to eschew error . . . [which] bewilder us in one false consequence after another in endless succession.

These are the inculcations necessary to render the people a sure basis for the structure of order & good government, but this would have been an operation of a generation or two at least, within which period would have succeeded many Neros and Commoduses, who could have quashed the whole process. I confess then I can neither see what Cicero, Cato, & Brutus, united and uncontrolled, could have devised to lead their people into good government, nor how this enigma can be solved, nor how further shewn. Why it has been the fate of that delightful country never to have known to this day & through a course of five & twenty hundred years, the history of which we possess one single day of free & rational government. Your intimacy with their history, ancient, middle & modern, your familiarity with the improvements in the science of government at this time, will enable you, if any body, to go back with our principles & opinions to the times of Cicero, Cato, & Brutus, & tell us by what process these great & virtuous men could have led so unenlightened and vitiated a people into freedom & good government. . . .⁷

Hence, for Jefferson, and most of the Founders, virtue was an essential element of liberty; if the people lack virtue, no form of government can rescue them from tyranny. Again, it must be remembered that the Founders relied on the wisdom of such thinkers as Aristotle, Cicero, and Locke and were influenced by such contemporaries as Edmund Burke and Adam Smith, among others, all of whom spent considerable time contemplating virtue. And the Founders returned repeatedly to the importance of natural law, eternal truths, and the transcendent moral order, including virtue.

Indeed, French philosopher Charles de Montesquieu (1689–1755) and his book The Spirit of the Laws (1748) were widely embraced by the Founders, especially during the constitutional period. Montesquieu explained: “There are three kinds of government: REPUBLICAN, MONARCHICAL, AND DESPOTIC. To discover the nature of each, the idea of them held by the least educated of men is sufficient. I assume three definitions, or rather, three facts: one, republican government is that in which the people as a body, or only a part of the people, have sovereign power; monarchical government is that in which one alone governs, but by fixed and established law; whereas, in despotic government, one alone, without law and without rule, draws everything along by his will and ­caprices. . . . There need not be much integrity for monarchical or despotic government to maintain or sustain itself. The force of the law in the one and the prince’s ever-raised arm in the other can rule or contain the whole. In a popular state there must be an additional spring, which is VIRTUE. What I say is confirmed by the entire body of history and is quite in conformity with the nature of things. For it is clear that less virtue is needed in a monarchy, where the one who sees to the execution of the laws judges himself above the laws, than in a popular government, where the one who sees to the execution of the laws feels that he is subject to them himself and that he will bear their weight. . . . But in a popular government when the laws have ceased to be executed, as this can come only from the corruption of the republic, the state is already lost.”⁸ In despotic government, “virtue is not at all necessary to it.”⁹

Montesquieu saw despotism, including its frequent antecedent, anarchy, as a continuing threat. He explained: “When that virtue ceases, ambition enters those hearts that can admit it, and avarice enters them all. Desires change their objects: what which one used to love, one loves no longer. One was free under the laws, one wants to be free against them. Each citizen is like a slave who has escaped from his master’s house. What was a maxim is now called severity; what was a rule is now called constraint; what was vigilance is now called fear. There, frugality, not the desire to possess, is avarice. Formerly the goods of individuals made up the public treasury; the public treasury has now become the patrimony of individuals. The republic is a cast-off husk, and its strength is no more than the power of a few citizens and the license to all.”¹⁰

Starting in 1774, John Adams wrote a series of essays, the Novanglus essays, to his fellow Massachusetts Bay Colony citizens, which were published in the Boston Gazette. Among other things, Adams stressed the inextricable relationship between liberty and virtue. He wrote: “Liberty can no more exist without virtue and independence, than the body can live and move without a soul. When these are gone, and the popular branch of the constitution has become dependent on the minister, as it is in England, or cut off, as it is in America, all other forms of the constitution may remain; but if you look for liberty, you will grope in vain; and the freedom of the press, instead of promoting the cause of liberty, will but hasten its destruction, as the best cordials taken by patients in some distempers become the most rancid and corrosive poisons.”¹¹

In fact, the Virginia Declaration of Rights (June 12, 1776), drafted by George Mason, included this essential section: “That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”¹² The Pennsylvania Declaration of Rights (August 16, 1776), drafted primarily by Benjamin Franklin, similarly included a passage about virtue: “That a frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free . . .”¹³ And the Massachusetts Declaration of Rights (1780), whose authors included John and Samuel Adams, included a like provision: “A frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary, to preserve the advantages of liberty, and to maintain a free government. . . .”¹⁴

As Russell Kirk (1918–1994), a major conservative thinker and historian, explained in his book The Conservative Mind—from Burke to Eliot (1953): “Liberty, in short, cannot be discussed in the abstract as if it were totally independent of public virtue and the framework of institutions. [John] ­Adams’s knowledge that freedom is a delicate plant, that even watering it with the blood of martyrs is dubious nutriment, impels him to outline a practical system for liberty under law. Liberty must be under law; there is no satisfactory alternative; liberty without law endures so long as a lamb among wolves. Even the compass of the civil laws does not sufficiently hedge liberty about: under cover of the best laws imaginable, freedom may still be infringed if virtue is lacking. What sort of government, then, will stimulate this indispensable private and public virtue comprehended in the golden rule?”¹⁵ A constitutional republic, of course.

Consequently, there must be a legal order, informed by a moral order, if the individual is to flourish. The wrong human-made law—which is contrary to or rejects natural rights—is oppressive. The right kind of law, adopted for the right reasons and in the right manner through republican institutions, can certainly help secure and even nurture individual and societal liberty, at least for a time.

Mill witnessed the growing influence and tyrannical threat of the so-called reformers and what would later include the progressives and he addressed them: “[S]ome of those modern reformers who have placed themselves in strongest opposition to the religions of the past, have been no way behind either churches or sects in their assertion of the right of spiritual domination. . . . [Their] aims at establishing . . . a despotism of society over the individual, surpass[es] anything contemplated in the political ideal of the most rigid disciplinarian among the ancient philosophers.”¹⁶ In fact, as Mill was writing his books and essays, the ideologies of Rousseau, Hegel, and Marx, among others, were taking tangible, political form at the urging of intellectuals throughout the world, including in the West. “Apart from the peculiar tenets of individual thinkers, there is also in the world at large an increasing inclination to stretch unduly the power of society over the individual, both by the force of opinion and even by that of legislation: and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend spontaneously to disappear, but, on the contrary, to grow more and more formidable. This disposition of mankind, whether as rulers or as fellow-citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power; and as the power is not declining, but growing, unless a strong barrier of moral conviction can be raised against the mischief, we must expect, in the present circumstances of the world, to see it increase.”¹⁷

In more recent times, the Russian-British political theorist and philosopher Isaiah Berlin (1909–1997) examined liberty by dividing it into two general but distinct categories—­positive liberty and negative liberty. As will become clear, these are easily confused terms, suggesting that “positive” liberty is something that is good and “negative” liberty is something that is bad; or perhaps that “positive” liberty establishes liberty and “negative” liberty denies it. That is not the case. Indeed, I would contend that the contrary is mostly true.

In various lectures and writings beginning in the 1950s, Berlin went further in developing these analytical devices. He explained that positive liberty “is involved in the answer to the question ‘What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?’ The two questions are clearly different, even though the answers to them may overlap.”¹⁸ Conversely, “liberty in the negative sense involves an answer to the question ‘What is the area within which the subject—a person or group of persons—is or should be left to do or be what he is able to do or be, without interference by other persons.’ ”¹⁹ The Stanford Encyclopedia of Philosophy describes the concepts straightforwardly: “Negative liberty is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting—or the fact of acting—in such a way as to take control of one’s life and realize one’s fundamental purposes. While negative liberty is usually attributed to individual agents, positive liberty is sometimes attributed to collectivities, or to individuals considered primarily as members of given collectivities.”²⁰ “The reason for using these labels is that in the first case liberty seems to be a mere absence of something (i.e., of obstacles, barriers, constraints or interference from others), whereas in the second case it seems to require the presence of something (i.e., of control, self-mastery, self-determination or self-realization).”²¹

Throughout the discussion of progressivism—from Rousseau, Hegel, and Marx to Croly, Roosevelt, Wilson, Dewey, and Weyl—the core themes have evolved around defining individual worth, salvation, and liberation through the lenses of the collective, scientifically managed by and through a centralized, unified governmental construct (often referred to or compared to a living organism or body) said to represent the general will, general welfare, national interests, and working masses (proletariat). “This organism will only act rationally, will only be in control of itself, when its various parts are brought into line with some rational plan devised by its wise governors (who, to extend the metaphor, might be thought of as the organism’s brain). In this case, even the majority might be oppressed in the name of liberty.”²² However, what is missing all through is an appreciation for and the best interests of the sanctity and sovereignty of the unique, flesh-and-blood, individual human being.

In his 1958 Inaugural Lecture on the two concepts of liberty, and its follow-up essays, Berlin explained that studies about politics and philosophy in academia “spring from, and thrive on, discord. Someone may question this on the ground that even in a society of saintly anarchists, where no conflicts about ultimate purposes can take place, political problems, for example constitutional or legislative issues, might still arise. But this objection rests on a mistake. Where ends are agreed, the only questions left are those of means, and these are not political but technical, that is to say, capable of being settled by experts or machines, like arguments between engineers or doctors. That is why those who put their faith in some immense, world-transforming phenomenon, like the final triumph of reason or the proletarian revolution, must believe that all political and moral problems can thereby be turned into technological ones. That is the meaning of Engels’ famous phrase (paraphrasing Saint-Simon) about ‘replacing the government of persons by the administration of things,’ and the Marxist prophecies about the withering away of the State and the beginning of the true history of humanity. This outlook is called Utopian by those for whom speculation about this condition of perfect social harmony is the play of idle fancy. Nevertheless, a visitor from Mars to any British—or American—university today might perhaps be forgiven if he sustained the impression that its members lived in something very like this innocent and idyllic state, for all the serious attention that is paid to fundamental problems of politics by professional philosophers.”²³

In this, Berlin said that the people ignore the academics and intellectuals at their own peril since it is they who devise and develop the philosophical and political notions upon which politics is practiced. And politics, in turn, is the means by which institutions govern and affect society and the individual. Consequently, Berlin exhorted that not enough attention is paid to this debate and the debaters despite the fact that the outcome will determine the future of humanity. “Yet this is both surprising and dangerous. Surprising because there has, perhaps, been no time in modern history when so large a number of human beings, in both the East and the West, have had their notions, and indeed their lives, so deeply altered, and in some cases violently upset, by fanatically held social and political doctrines. Dangerous, because when ideas are neglected by those who ought to attend to them—that is to say, those who have been trained to think critically about ideas—they sometimes acquire an unchecked momentum and an irresistible power over multitudes of men that may grow too violent to be affected by rational criticism. Over a hundred years ago, the German poet Heine warned the French not to underestimate the power of ideas: philosophical concepts nurtured in the stillness of a professor’s study could destroy a civilization.”²⁴

In further describing negative liberty, Berlin argued: “I am normally said to be free to the degree to which no man or body of men interferes with my activity. Political liberty in this sense is simply the area within which a man can act unobstructed by others. If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved. Coercion is not, however, a term that covers every form of inability. If I say that I am unable to jump more than ten feet in the air, or cannot read because I am blind, or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced. Coercion implies the deliberate interference of other human beings within the area in which I could otherwise act. You lack political liberty or freedom only if you are prevented from attaining a goal by human beings. Mere incapacity to attain a goal is not lack of political freedom.”²⁵

Berlin then analyzed the state of mind motivating modern progressives: “What troubles the consciences of Western liberals is . . . the belief, not that the freedom that men seek differs according to their social or economic conditions, but that the minority who possess it have gained it by exploiting, or, at least, averting their gaze from, the vast majority who do not. They believe, with good reason, that if individual liberty is an ultimate end for human beings, none should be deprived of it by others; least of all that some should enjoy it at the expense of others. Equality of liberty; not to treat others as I should not wish them to treat me; repayment of my debt to those who alone have made possible my liberty or prosperity or enlightenment; justice, in its simplest and most universal sense—these are the foundations of liberal morality. . . . But nothing is gained by a confusion of terms. To avoid glaring inequality or widespread misery I am ready to sacrifice some, or all, of my freedom: I may do so willingly and freely; but it is freedom that I am giving up for the sake of justice or equality or the love of my fellow men. I should be guilt-stricken, and rightly so, if I were not, in some circumstances, ready to make this sacrifice. But a sacrifice is not an increase in what is being sacrificed, namely freedom, however great the moral need or the compensation for it. . . . Yet it remains true that the freedom of some must at times be curtailed to secure the freedom of others. Upon what principle should this be done? If freedom is a sacred, untouchable value, there can be no such principle. One or other of these conflicting rules or principles must, at any rate in practice, yield: not always for reasons which can be clearly stated, let alone generalized into rules or universal maxims. Still, a practical compromise has to be found.”²⁶

Turning to the positive liberty concept, Berlin asserted: “Self-government may, on the whole, provide a better guarantee of the preservation of civil liberties than other regimes, and has been defended as such by libertarians. But there is no necessary connection between individual liberty and democratic rule. The answer to the question ‘Who governs me?’ is logically distinct from the question ‘How far does government interfere with me?’ It is in this difference that the great contrast between the two concepts of negative and positive liberty, in the end, consists. For the ‘positive’ sense of liberty comes to light if we try to answer the question, not ‘What am I free to do or be?’ but ‘By whom am I ruled?’ or ‘Who is to say what I am, and what I am not, to be or do?’ The connection between democracy and individual liberty is a good deal more tenuous than it seemed to many advocates of both. The desire to be governed by myself, or at any rate to participate in the process by which my life is to be controlled, may be as deep a wish as that for a free area for action, and perhaps historically older. But it is not a desire for the same thing. So different is it, indeed, as to have led in the end to the great clash of ideologies that dominates our world. For it is this, the ‘positive’ conception of liberty, not freedom from, but freedom to—to lead one prescribed form of life—which the adherents of the ‘negative’ notion represent as being, at times, no better than a specious disguise for brutal tyranny.”²⁷

Moreover, and notably, Berlin describes the mind-set of modern progressives and their philosophical patrons, declaring that in exercising the positive freedom idea to be all you want to be, the danger is that “the real self may be conceived as something wider than the individual (as the term is normally understood), as a social ‘whole’ of which the individual is an element or aspect: a tribe, a race, a Church, a State, the great society of the living and the dead and the yet unborn. This entity is then identified as being the ‘true’ self which, by imposing its collective, or ‘organic,’ single will upon its recalcitrant ‘members,’ achieves its own, and therefore their, ‘higher’ freedom. The perils of using organic metaphors [general will of the people, general welfare of the people, etc.] to justify the coercion of some men by others in order to raise them to a ‘higher’ level of freedom have often been pointed out. But what gives such plausibility as it has to this kind of language is that we recognize that it is possible, and at times justifiable, to coerce men in the name of some goal (let us say, justice or public health) which they would, if they were more enlightened, themselves pursue, but do not, because they are blind or ignorant or corrupt. This renders it easy for me to conceive of myself as coercing others for their own sake, in their, not my interest. [. . .] [T]hey would not resist me if they were rational and as wise as I, and understood their interests as I do.”²⁸

As Berlin explained further: “I may go on to claim a good deal more than this. I may declare that they are actually aiming at what in their benighted state they consciously resist, because there exists within them an occult entity—their latent rational will, or their ‘true’ purpose—and that this entity, although it is belied by all that they overtly feel and do and say, is their ‘real’ self, of which the poor empirical self in space and time may know nothing or little; and that this inner spirit is the only self that deserves to have its wishes taken into account. Once I take this view, I am in a position to ignore the actual wishes of men or societies, to bully, oppress, torture them in the name, and on behalf, of their ‘real’ selves, in the secure knowledge that whatever is the true goal of man (happiness, performance of duty, wisdom, a just society, self-­fulfillment) must be identical with his freedom—the free choice of his ‘true,’ albeit often submerged and inarticulate, self.”²⁹

Berlin was also well aware of the calculating psychology and behavior of the autocratic masterminds, among whom I include the progressives. “[T]he ‘positive’ conception of freedom as self-mastery, with its suggestion of a man divided against himself, has in fact, and as a matter of history, of doctrine and of practice, lent itself more easily to this splitting of personality into two: the transcendent, dominant controller, and the empirical bundle of desires and passions to be disciplined and brought to heel. It is this historical fact that has been influential. This demonstrates (if demonstration of so obvious a truth is needed) that conceptions of freedom directly derive from views of what constitutes a self, a person, a man. Enough manipulation of the definition of man, and freedom can be made to mean whatever the manipulator wishes. Recent history has made it only too clear that the issue is not merely academic.”³⁰

Irish philosopher and Princeton University professor Philip Pettit has also spent considerable time examining and writing about the issue of freedom. In his book Republicanism: A Theory of Freedom and Government (1997), Pettit, among other things, examined certain ancient thinkers as well as American Revolutionary period writers. He asserts: “The important point to notice . . . is that the writers . . . take liberty to be defined by a status in which the evils associated with interference are avoided [negative liberty] rather than by access to the instruments of democratic control [positive liberty], participatory or representative. Democratic control is certainly important in the tradition, but its importance comes, not from any definitional connection with liberty, but from the fact that it is a means of furthering liberty.”³¹

Of course, sometime after the American Revolution, when the framers undertook the task of drafting the Constitution, the preamble, although merely introductory and adopted near the end of the Constitutional Convention, declared formally and publicly the official purpose of their task: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.”³² As Pettit contends, the framers did so to secure and promote individual liberty and the civil society.

Pettit also explains that some of the founding-era writers supported a populist approach to government, favoring majoritarianism (meaning a democratic form of government) to republicanism, and that such a governing construct actually threatens the safeguards against arbitrary interference with individual liberty. “While it is true that the republican thinkers [meaning those who believe in a republican form of government] in general regarded democratic participation or representation as a safeguard of liberty, not as its defining core, the growing emphasis on democracy did lead some individuals away from traditional alignments and towards the full populist position of holding that liberty consists in nothing more than democratic self-rule. . . . Rousseau is probably responsible for having given currency to such a populist view. The populist twist was a new development, and attained its full form only when the ideal of democratic self-rule came to be held up as the main alternative, or at least the main alternative among notions of liberty, to the negative ideal of non-interference. To think of the republican tradition as populist, as of course many have done, would be to sustain the very dichotomy that has rendered the republican ideal invisible.”³³

This new “populism” certainly was not the dominant view during America’s founding. The entire debate surrounding the drafting, adoption, and ratification of the Constitution, and the debates between the Federalists and Anti-Federalists, make this abundantly clear. As discussed earlier and at length, however, the progressives did and do use populist language and appeals to nationalism to make alluring the promotion of an ever larger and more centralized governmental presence and administrative structure. Their approach could be characterized as democratizing tyranny. Progressives condemn America’s founding principles, including the Declaration of Independence and its emphasis on individual unalienable rights, as well as the Constitution, especially the separation-of-powers doctrine and federalism, precisely because of their republican features and obstacles to concentrated governmental power.

Pettit takes a somewhat different view than Berlin in that he contends the republican emphasis on avoiding interference did not come as a belief in freedom as noninterference but as a belief in freedom as nondomination. “There are two grounds for thinking that the conception of liberty as non-domination is the view of liberty that we find in the republican tradition. This first is that in the republican tradition, by contrast with the modernist [progressive] approach, liberty is always cast in terms of opposition between . . . citizen and slave. The condition of liberty is explicated as the status of someone who, unlike the slave, is not subject to the arbitrary power of another; that is, someone who is not dominated by anyone else. Thus, the condition of liberty is explicated in such a way that there may be a loss of liberty without any actual interference: there may be enslavement and domination without interference, as in the scenario of the non-interfering master. . . . The second ground is that liberty is explicated within the republican tradition in such a way that not only can liberty be lost without actual interference; equally, interference may occur, under the scenario of the non-mastering interferer, without people being rendered thereby unfree. The non-mastering interferer envisaged by republicans . . . was the law and government that obtains in a well-ordered republic.”³⁴

Pettit contends that “the interference-without-domination motif comes out in the republican emphasis on the fact that while the properly constituted law—the law that answers systematically to people’s general interests and ideas—represents a form of interference, it does not compromise people’s liberty; it constitutes a non-mastering interferer.”³⁵ “According to the earliest republican doctrine, the laws of a suitable state, in particularly the laws of a republic, create the freedom enjoyed by citizens; they do not offend against that freedom, even in a measure for which they later compensate. . . . As the laws create the authority that rulers enjoy, so the laws create the freedom that citizens share. The laws only do this, of course, so long as they respect people’s common interests and ideas and conform to the image of an ideal law; so long as they are not the instruments of any individual’s, or any group’s, arbitrary will. When the laws become the instruments of will, according to the tradition, then we have a regime—say, the despotic regime of the absolute king—in which the citizens become slaves and are entirely deprived of their freedom. . . .”³⁶

Pettit argues the republican view holds that “[g]ood laws may relieve people from domination—may protect them against the resources or dominium of those who would otherwise have arbitrary power over them—without themselves introducing any new dominating force; without introducing the domination that can go with governmental imperium. The political authorities recognized by the laws represent potential dominators, but the recurrent republican idea is that these will themselves be suitably constrained—they will have no arbitrary power over others—under a proper constitution; say, where suitable mechanisms and representation, rotation of office, separation of powers, and like are in place. While the law necessarily involves interference—while law is essentially coercive—the interference in question is not going to be arbitrary; the legal authorities will be entitled and enabled to interfere only when pursuing the common interests of citizens and only when pursuing these in a manner that conforms to the opinions received among the citizenry.”³⁷

However, Berlin’s negative liberty of noninterventionism and Pettit’s modification of interventionism to nondomination are not necessarily in conflict. Instead, I believe that both, taken together with virtue, represent the intent and approach of the American Founders. There are essential areas of individual liberty that should remain unmolested by man-made entities like government, and there are other areas where there may be intervention, including of the nondominant sort. The drawing of lines is relevant only within the framework of natural law considerations, civil society compacts, and a republican governing system. (Tyrannical regimes are built on notions of positive liberty, where such line drawing is less relevant because individualism is less relevant.)

For example, negative liberty, both noninterventionist and nondominant, are present in the Constitution’s Bill of Rights. It is a set of negative liberty directives to the federal government, where the federal government is prevented from taking certain actions altogether, or where actions are to be limited in scope.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.³⁸

Of course, for the progressive, none of this is of consequence. The progressive believes in a spiritual and actual slavery to mankind’s perfectibility by mankind itself. The American heritage is considered a heritage of folklore and irrelevance, if not regressive and obstructive. Therefore, for the progressive, reason alone, the here and now, science applied to human behavior and governance, the individual as community, and the existing social needs require a “higher nature.” And that higher nature is of modern man’s making, unencumbered by external truth, the guidance and constraints of a moral order, or ancient traditions. Again, as Berlin said, the question then is not about the individual’s liberty but is “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?”³⁹ For the progressive, the answer is the centralized administrative state, where the individual is coerced in infinite ways, as willed by the machinery of the state. As such, reason transforms into will, which in turn transforms into an ideological pursuit of control and power. Actual science, reason, and knowledge are abandoned. Yet this is said to be liberating of both the individual and society. Mankind is said to be free and autonomous when, in fact, the opposite is true. Berlin wrote: “But to manipulate men, to propel them towards goals which you—the social ­reformer—see, but they may not, is to deny their human essence, to treat them as objects without wills of their own, and therefore to degrade them. That is why to lie to men, or to deceive them, that is, to use them as means for my, not their own, independently conceived ends, even if it is for their own benefit, is, in effect, to treat them as subhuman, to behave as if their ends are less ultimate and sacred than my own. . . .”⁴⁰ Berlin explained: “If I find that I am able to do little or nothing of what I wish, I need only contract or extinguish my wishes, and I am made free. If the tyrant (or ‘hidden persuader’) manages to condition his subjects (or customers) into losing their original wishes and embracing (‘internalizing’) the form of life he has invented for them, he will, on this definition, have succeeded in liberating them. He will, no doubt, have made them feel free. . . . But what he has created is the very antithesis of political freedom.”⁴¹

Having rejected natural law and constitutional republicanism, the progressive embraces another theory of law, although foreign to the American heritage—positive law. Again, the word positive should not be confused with “the good” or promoting and securing liberty. Positive law is coercive law, law promulgated by the state to further the will and the purposes of the state. There is no moral basis or virtue tied to the law. The merits of the law are not material. In fact, such considerations are irrelevant. The government issues laws, rules, orders, or regulations and they are to be obeyed under threat of punishment. There is, then, a tension when the will of the state conflicts with the will of the people. However, for the progressive, external political influences, like elections, are nonlegal in nature. The state will determine if, and the extent to which, such nonlegal influences are worthy of consideration when developing, issuing, and enforcing the law. That said, as the very character of the government becomes less republican and more regime oriented, elections and other forms of popular and representative participation are less consequential. The ideologically driven “scientific”-based judgment of the administrative state, which has assumed much of the lawmaking authority of a legislature, ultimately prevails as it is unhinged from moral roots and grows increasingly immune from nonlegal influences.

At its core, positive law is an outgrowth of the doctrine of positivism, which in turn is a rejection of natural law. All knowledge is allegedly based on the relationships between and among phenomena resulting from empiricism and scientism. Auguste Comte (1798–1857), a French philosopher who is said by some to have originated the modern concept of positivism and the practice of sociology, wrote in his book A General View of Positivism (1848) that “[p]ositivism consists essentially of a Philosophy and a Polity [that is, an ideology and societal organization]. These can never be dissevered; the former being the basis, and the latter the end of one comprehensive system, in which our intellectual faculties and our social sympathies are brought into close correlation with each other. For, in the first place, the science of Society, besides being more important than any other, supplies the only logical and scientific link by which all our varied observations of phenomena can be brought into one consistent whole. . . .”⁴²

Comte and John Stuart Mill were contemporaries. Mill wrote a book, Auguste Comte and Positivism (1865), in which Mill critiqued positivism and, specifically, condemned Comte’s thinking. Mill explained that positivism is the general belief that “[w]e have no knowledge of anything but Phenomena [perception or happenings]; and our knowledge of phenomena is relative, not absolute. We know not the essence, nor the real mode of production, of any fact, but only its relations to other facts in the way of succession or of similitude. These relations are constant; that is, always the same in the same circumstances. The constant resemblances which link phenomena together, and the constant sequences which unite them as antecedent and consequent, are termed their laws. The laws of phenomena are all we know respecting them. Their essential nature, and their ultimate causes, either efficient or final, are unknown and inscrutable to us. . . . Now, all foresight of phenomena, and power over them, depend on knowledge of their sequences, and not upon any notion we may have formed respecting their origin or inmost nature. . . . All foresight, therefore, and all intelligent action, have only been possible in proportion as men have successfully attempted to ascertain the successions of phenomena. Neither foreknowledge, nor the knowledge which is practical power, can be acquired by any other means.”⁴³

For Comte and his followers of scientism, this meant and means much more than destroying theology; it discards all notions of eternal truths and transcendent principles. “The theological synthesis depended exclusively upon our affective nature; and to this is owing its original supremacy and its ultimate decline. For a long time its influence over all our highest speculations was paramount. . . . In my work on Positive Philosophy I have clearly proved that it constitutes only a transitory phase of mind, and is totally inadequate for any constructive purpose. For a time it was supreme; but its utility lay simply in its revolutionary tendencies. It aided the preliminary development of Humanity by its gradual inroads upon Theology, which, though in ancient times entrusted with the sole direction of society, had long since become in every respect utterly retrograde.”⁴⁴

Comte’s positivism and “stages of development” theory and the Hegel-Marx historicism are kindred and lay the foundation for modern progressivism. They all presume to know and establish the final stage of human development (even if the final stage is in a state of constant remaking), denounce organized religion and timeless truths, and worship the narcissism of their own moral nihilism. Indeed, Comte committed an entire chapter to the proposition of positivism-scientism-secularism as “the religion of humanity.” “Love, then, is our principle; Order our basis; and Progress our end. Such . . . is the essential character of the system of life which Positivism offers for the definite acceptance of society; a system which regulates the whole course of our private and public existence, by bringing Feeling, Reason, and Activity into permanent harmony. In this final synthesis, all essential conditions are far more perfectly fulfilled than in any other. Each special element of our nature is more fully developed, and at the same time the general working of the whole is coherent. Greater distinctiveness is given to the truth that the affective element predominates in our nature. Life in all its actions and thoughts is brought under the control and inspiring charm of Social Sympathy.” Comte added: “Public and private life are now brought into close relation by the identity of their principal aim, which, being kept constantly in sight, ennobles every action of both.”⁴⁵ As with Rousseau, for Comte the individual realizes his fulfillment only as part of the whole community—that is, as a functionary of the state.

Positive liberty, positive law, and positivism are an ideological brew of tyranny. The pursuit of the “final stage” of human development grows miserable and ultimately elusive. Consequently, as mentioned earlier, positivism preaches ignorance of the ultimate meaning of law and absolute compliance with the state’s ends. It requires a governing process of rules, demands, and adherence. The individual is subservient and submissive. He has no meaningful recourse. For example, as explored in my books Liberty and Tyranny and Plunder and Deceit, in present day, “man-made climate change” is declared by the state to be a scientific fact, around which the economy is to be reorganized and about which society is to be indoctrinated. Those who question not just the “science” but the motivations behind the movement are publicly denounced and ridiculed as “deniers.” All contrary scientific evidence and knowledge are dismissed outright. The state has spoken and all shall obey.

As a result of these influences, over the last century there has been a thoroughgoing change in American jurisprudence and the legal system—and, therefore, in liberty itself. Specifically, the progressive’s ideology is not only omnipresent in lawmaking through the administrative state, but is the overwhelmingly dominant approach to adjudication. In other words, more and more the law is as the progressive ideology dictates—a force for societal transformation and social reorganization. The banishment of the Constitution and republicanism, like the disembowelment of the Declaration of Independence and individualism, has been scrupulous. There is now a vast gulf between the government the progressives have constructed and the framers’ Constitution.

In his book The Ideological Origins of the American Revolution (1967), the American historian and professor Bernard Bailyn writes, “The theory of politics that emerges from the political literature of the pre-Revolutionary years rests on the belief that what lay behind every political scene, the ultimate explanation of every political controversy, was the disposition of power. The acuteness of the colonists’ sense of this problem is, for the [modern] reader, one of the most striking things to be found in the eighteenth-century literature: it serves to link the Revolutionary generation to our own in the most intimate way. The colonists had no doubt about what power was and about its central, dynamic role in any political system. . . . What gave transcendent importance to the aggressiveness of power was the fact that its natural prey, its necessary victim, was liberty, or law, or right. The public world these writers saw was divided into distinct, contrasting, and innately antagonistic spheres: the sphere of power and the sphere of liberty and right. The one was brutal, ceaselessly active, and heedless; the other was delicate, passive, and sensitive. . . . Not that power was in itself—in some metaphysical sense—evil. It was natural in its origins, and necessary. It had legitimate foundations ‘in compact and mutual consent’—in those covenants among men by which, as a result of restrictions voluntarily accepted by all for the good of all, society emerges from a state of nature and creates government to serve as trustee and custodian of the mass of surrendered individual powers.”⁴⁶

The Founders were no less concerned that the federal government they were establishing would avoid the institutionalized abuses of power of other postrevolutionary socie­ties. In this effort they strived mightily, and in this regard they looked to, among others, the wisdom of French philosopher Montesquieu and his seminal work, The Spirit of the Laws. Montesquieu discussed the nature of man, societies, and government. He explained that “[i]n despotic states, the nature of the government requires extreme obedience, and the prince’s will, once known, should produce its effect as infallibly as does one ball thrown against another. No tempering, modification, accommodation, terms, alternatives, negotiations, remonstrances, nothing as good or better can be proposed. Man is a creature that obeys a creature that wants. He can no more express his fears about a future event than he can blame his lack of success on the caprice of fortune. There, men’s portion, like beasts’, is instinct, obedience, and chastisement. It is useless to counter with natural feelings, respect for father, tenderness of one’s children or women, laws of honor, of the state of one’s health; one has received the order and that is enough.”⁴⁷ In this, has Montesquieu not described the basic character of the progressives and their ideological forefathers?

Montesquieu also argued that for much of humankind, despotic governments have prevailed. “Despite men’s love of liberty, despite their hatred of violence, most peoples are subjected to this type of government. This is easy to understand. In order to form a moderate government, one must combine powers, regulate them, temper them, make them act; one must give one power a ballast, so to speak, to put it in a position to resist another; this is a masterpiece of legislation that chance rarely produces and prudence is rarely allowed to produce. By contrast, despotic government leaps to view, so to speak; it is uniform throughout; as only passions are needed to establish it, everyone is good enough for that.”⁴⁸ Again, is Montesquieu not forecasting the progressives’ war on the separation-of-powers doctrine?

Even democracies are susceptible to tyrannies of a certain kind. Montesquieu wrote: “The principle of democracy is corrupted not only when the spirit of equality is lost but also when the spirit of extreme equality is taken up and each one wants to be the equal of those chosen to command. So the people, finding intolerable even the power they entrust to others, want to do everything themselves: to deliberate for the senate, to execute for the magistrates, and to cast aside all judges.” Therefore, “democracy has to avoid two excesses: the spirit of inequality, which leads it to aristocracy or to the government of one alone, and the spirit of extreme equality, which leads it to the despotism of one alone, as the despotism of one alone ends by conquest.”⁴⁹

The progressive has succeeded in both regards by claiming to emancipate the individual through the democratization of autocracy—that is, justifying the concentration of governing power and the coercive envelopment of the individual with images of extreme egalitarianism and utopian promises.

For Montesquieu, like the framers, a republican government that was established by a fixed constitution, with the three powers of government—legislative, executive, and ­adjudicative—separated one from the other, provided the conditions for either creating or maintaining a free and civil society. He profoundly asserted that “[p]olitical liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen.” He went on to famously state the structure of such a government. “When legislative power is united with executive power in a single person or in a simple body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from the legislative power and from the executive power. If it were joined to the legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to the executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”⁵⁰

Obviously, this construct of separating the powers of government for the purpose of preventing centralized despotism was absolutely fundamental to the framers. It is one of two major innovations incorporated into America’s republican system of constitutional government, the other being federalism. Indeed, the first three articles of the Constitution make this clear. Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”; Article II, Section 1: “The executive Power shall be vested in a President of the United States of America”; Article III, Section 1: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”⁵¹

During the subsequent state ratification debates, James Madison, Alexander Hamilton, and John Jay, all of whom had been delegates to the Constitutional Convention, famously penned and had published a series of brilliant essays later known as the Federalist Papers, in which they explained and defended the various provisions of the proposed Constitution, including the separation-of-powers structure.

In Federalist 47 (February 1, 1788), Madison underscored Montesquieu’s view:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.⁵²

In addition, in Federalist 51 (February 6, 1788), Madison wrote:

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. 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.

This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual, may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.⁵³

The second unique but crucial character of the Constitution was federalism. As a practical matter, since the states created the federal government in the first place, much care was given by the delegates to the Constitution Convention and the delegates to the state ratification conventions to protecting areas of state sovereignty from federal and national encroachment. Consequently, not only was the separation of powers among the branches within the federal government important in preventing the centralization of power; so too was the enumeration of specific powers within each branch of the federal government and in the federal constitution generally, thereby leaving all other governing authority to the states.

The conceptual framework for federalism, or the confederation of states—where governing power is decentralized, shared, and divided among governing entities under a unified whole—predates the American founding. For example, Johannes Althusius (1563–1638), a German jurist and philosopher who provided the most elaborate exposition and defense of federalism, and who was informed by Aristotle, Cicero, and others, wrote about the early development of federalism in his book Politica (1603). “Even though these heads, prefects, and rectors [governors or magistrates] of provinces recognize the supreme magistrate of the realm [kingdom or nation] as their superior, from whom their administration and power are conceded, nevertheless they have rights of sovereignty in their territory, and stand in the place of the supreme prince. They prevail as much in their territory as does the emperor or supreme magistrate in the realm, except for superiority, preeminence, and certain other things specifically reserved to the supreme magistrate who does the constituting. Such is the common judgment of jurists. The head of the province therefore has the right of superiority and regal privileges in his territory, but without prejudice to the universal jurisdiction that the supreme prince has. . . .”⁵⁴ Conversely, “[t]yranny is the contrary of just and upright administration. By it the foundations and bonds of universal association are obstinately, persistently, and insanely destroyed and overthrown by the supreme magistrate against his pledged word and declared oath. . . . A tyrant is therefore one who, violating both word and oath, begins to shake the foundations and loosen the bonds of the associated body of the commonwealth. A tyrant may be either a monarch or polyarch [where power is exercised by multiple officials] that through avarice, pride, or perfidy cruelly overthrows and destroys the most important goods of the commonwealth, such as its peace, virtue, order, law, and mobility. . . .”⁵⁵

Moreover, as University of Chicago law professor Alison L. LaCroix explains in her book, The Ideological Origins of American Federalism (2010), federalism in various ways was practiced in America even before the Constitution was adopted:

[T]he history of American federalism began decades before the Constitutional Convention of 1787. Some of federalism’s central concepts, most notably the idea of constructing a government around multilayered legislative authority, had begun to emerge in the 1760s and 1770s, cobbled together by members of the colonial opposition in the midst of protracted disputes between British North Americans and their metropolitan counterparts. Nevertheless, the debates at the Constitutional Convention . . . represented a vital moment in which British imperial precedents, colonial practices, postwar exigency, and political theory came together in the hands of particular individuals to form both a new idea of government and an actual new government. The convention debates and the Constitution that resulted created and codified federalism in important ways. Arguments about the nature and scope of Parliament’s power to regulate the colonies, which began as the colonists’ response to what they viewed as unconstitutional legislation from Westminster, became by the 1780s a full-blown theory of government authority. With the rebellion against Britain behind them, the members of the founding generation were able—indeed, required—to consolidate the previous two decades’ many shreds and pieces of structural and political argument into a more or less coherent conception of government. In this sense, then, the discussions in Philadelphia represented neither an original moment of genius nor simply another instance of negotiation among existing groups and institutions. Rather, the period from 1787 to 1789 should be understood as a reexamination and reshuffling of fundamental ideas of government which Americans had begun experimenting with decades before. The drafting and ratification of the Constitution served to crystallize a novel, distinctively British North American theory of government that had been developing since at least the mid-1760s.⁵⁶

Again, the Federalist Papers are instructive. In Federalist 9 (November 21, 1787), Alexander Hamilton wrote:

The utility of a Confederacy, as well to suppress faction and to guard the internal tranquility of States, as to increase their external force and security, is in reality not a new idea. It has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. . . .

The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.⁵⁷

In Federalist 32 (January 3, 1788), Hamilton wrote:

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT.⁵⁸

In Federalist 39 (January 16, 1788), Madison wrote:

The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. . . . The proposed Constitution . . . is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national. . . .⁵⁹

In Federalist 45 (January 26, 1788), Madison wrote:

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.⁶⁰

In addition to the Constitution’s federalist structure, the Tenth Amendment was included among the initial amendments to the Constitution, and it emphasized further the significance of federalism. Again, it reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”⁶¹

Moreover, the spirit and character of the Constitution, its formulations and purposes, was a reflection of the nation’s personality. In his book The Roots of American Order (1974), Russell Kirk explained:

The true Constitution of any political state is not merely a piece of parchment, but rather a body of fundamental laws and customs that join together the various regions and classes and interests of a country, in a political pattern that is just. The English constitution is said to be “unwritten”: that is, there exists no single formal document which can be called the Constitution of the United Kingdom. Certain great permanent charters, statutes, and usages, and long-accepted political conventions make up that system of practices and principles, vaguely delimited but strong entrenched, which is British constitutional government. Similarly, even the American Republic possesses an underlying unwritten constitution—of which the written Constitution of the United States is an expression. The written Constitution has survived and has retained authority because it is in harmony with laws, customs, habits, and popular beliefs that existed before the Constitutional Convention met at Philadelphia—and which still work among Americans today. The written Constitution produced by the delegates from the several states drew upon the political experience of the colonies, upon their legacy of English law and institutions, upon the lessons of America under the Articles of Confederation, upon popular consensus about certain moral and social questions. Thus the Constitution was no abstract or utopian document, but a reflection and embodiment of political reality in America. Once ratified, the Constitution could obtain the willing compliance of most Americans because it set down formally and in practical fashion much of the “unwritten” constitution of American society.⁶²

As discussed earlier, progressives find this entire governing formulation and its earlier foundational influences intolerable and therefore they have sought to eradicate and replace it. In one of his several manifestos, Constitutional Government in the United States (1908), Woodrow Wilson regurgitated Rousseau’s theory that government and society are akin to living beings with organs that cannot function separately and apart from each other, a frequent theme among progressives promoting the centralization and concentration of power. “It is difficult to describe any single part of a great governmental system without describing the whole of it. Governments are living things and operate as organic wholes. Moreover, governments have their natural evolution and are one thing in one age, another in another. The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical of a theory.”⁶³

Wilson, like other progressives of the past and present, contended that the American constitutional system is a relic, incompatible with a modern society. “The makers of our federal Constitution followed the scheme as they found it expounded by Montesquieu, followed it with genuine scientific enthusiasm. The admirable expositions of the Federalist read like thoughtful applications of Montesquieu to the political needs and circumstances of America. They are full of the theory of checks and balances. The President is balanced off against Congress, Congress against the President, and each against the courts. Our statesmen of the earlier generations quote no one so often as Montesquieu, and they quoted him always as a scientific standard in the field of politics. Politics is turned into mechanics under this touch. . . . 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.” Wilson added: “[Government] is modified by its environment, necessitated by its tasks, shaped to its functions by sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. . . . This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian [evolutionary] in structure and practice.”⁶⁴

However, the purpose of the Constitution is not to supplant or smother the civil society and in turn the free will of the individual with a powerful central government, but to safeguard them—that is, to control the rulers and uphold the society. There is nothing scientific or mechanical about it. The American founding was not an experiment in governmental extravagance but an effort to ensure that the individual can prosper in a just and stable environment. Of course, the Constitution can be modified by its amendment processes under Article V, which requires the consideration, input, and approval of a broad spectrum of the body politic. But for Wilson and the progressives, this is far too cumbersome. Law is useless if not used to empower the state and societal transformation, constitutional constraints and processes be damned.

Moreover, despite populist themes and claims of popular will, progressives prefer domination. Obviously, centralized governmental decision making provides social engineers and planners far greater latitude to act. Consequently, the power center for Wilson and the progressive is, unsurprisingly, the executive branch.

Wilson proclaimed: “Some of our Presidents have deliberately held themselves off from using the full power they might legitimately have used, because of conscientious scruples, because they were more theorists than statesmen. They have held to the strict literary theory of the Constitution . . . and have acted as if they thought that Pennsylvania Avenue should have been even longer than it is; that there should be no intimate communication of any kind between the Capitol and the White House; that the President as a man was no more at liberty to lead the houses of Congress by persuasion than he was at liberty as President to dominate them by ­authority,—supposing that he had, what he has not, authority enough to dominate them. But the makers of the Constitution were not enacting Whig theory, they were not making laws with the expectation that, not the laws themselves, but their opinions, known by future historians to lie back of them, should govern the constitutional action of the country. They were statesmen, not pedants, and their laws are sufficient to keep us to the paths they set us upon. The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution,—it will be from no lack of constitutional powers on its part, but only because the President has the nation behind him, and Congress has not.”⁶⁵

Wilson’s disingenuousness is stark. He inverted the Constitution and the framers’ intent to advance a theory of government that would destroy what they established and gainsay the principles they repeatedly advocated. As is all too common among progressives, Wilson exploited the language of the Constitution, which he abhorred, to justify his ideological ends. Consequently, Wilson insisted that the president best represents the people, speaks for the people, and sets the political policy agenda for the nation. The president, under Wilson’s model, is a unitary voice of the government and the executive in charge of the administrative state. He can hold the rest of government accountable to the people, which, of course, is another perversion of republicanism. Unfortunately, there is little debate that this is a more accurate description of the current federal government than that which was actually established by the Constitution. Professors Bruce P. Frohnen and George W. Carey lamented that “presidents increasingly are claiming for themselves, and being accorded, the old, royal power to act outside the law so long as it is in some sense ‘in the public interest.’ ”⁶⁶

Indeed, Congress, which was to be a coequal branch of the federal government, if not the most important, now occupies a lesser role than the others due to its own conferral of lawmaking authority to the executive branch’s administrative state or by inaction when the president seizes more legislative authority or unilaterally rules over the top of Congress. The evidence of executive legislating is overwhelming. In matters large and small, the administrative state rules. The constitutional structure has been significantly diminished. The Congressional Research Service recently reported that according to the Office of the Federal Registrar, “the number of final rules published each year [by the executive branch] is generally in the range of 2,500–4,500.”⁶⁷ The Competitive Enterprise Institute determined that by December 30, 2016, in a record-setting Federal Register of 97,110 pages, agencies had issued 3,853 rules and regulations, 43 more than 2015 and eighteen times the number of laws (Public Laws) Congress passed during the year.⁶⁸

The Unconstitutionality Index
Public Laws vs. Agency Rulemakings
Year	Final Rules	Public Laws	THE “INDEX”
2003	4148	198	21
2004	4101	299	14
2005	3975	161	25
2006	3178	321	12
2007	3595	188	19
2008	3830	285	13
2009	3503	125	28
2010	3573	217	16
2011	3807	81	47
2012	3708	127	29
2013	3659	72	51
2014	3554	224	16
2015	3410	115	30
2016	3853	211	18

Such administrative legislating also contravenes Montesquieu’s warning about the nature of lawmaking. Montesquieu explained that the promulgation of laws by republican governments must comport with the nature of the society and the government. Otherwise, a country risks decline or tyranny. He wrote: “Laws must relate to the nature and the principle of government that is established or that one wants to establish, whether those laws form it as do political laws, or maintain it, as do civil laws.”⁶⁹ “There are two sorts of tyranny: a real one, which consists in the violence of the government, and one of opinion, which is felt when those who govern establish things that run counter to a nation’s way of thinking.”⁷⁰ “The legislator is to follow the spirit of the nation when doing so is not contrary to the principles of the government, for we do nothing better than what we do freely and by following our national genius. If one gives a pedantic spirit to a nation naturally full of gaiety, the state will gain nothing, either at home or abroad. Let it do frivolous things seriously and serious things gaily.”⁷¹

Of course, the entire progressive enterprise is about zealously and endlessly reformulating, reconfiguring, reengineering, remaking, etc., the nature of society and the individual through a growing labyrinth of departments and agencies, and rules and decrees. There is relentless planning, programming, regulating, overseeing, etc., by the administrative state, often in contravention of the public will and without the consent of the people’s representatives. All is in a state of flux and perpetual motion except, of course, the fact of the progressive ideology and agenda, which finds permanence within the Leviathan it has created.

The iconic Scottish economist and philosopher Adam Smith (1723–1790), a contemporary of the American Founders and friend of Edmund Burke, smartly diagnosed the difference between the man of true public spirit and the man of arrogance and conceit, praising the former and condemning the latter. In his acclaimed essay The Theory of Moral Sentiments (1759), Smith stated:

The man whose public spirit is prompted altogether by humanity and benevolence, will respect the established powers and privileges even of individuals, and still more those of the great orders and societies, into which the state is divided. Though he should consider some of them as in some measure abusive, he will content himself with moderating, what he often cannot annihilate without great violence. When he cannot conquer the rooted prejudices of the people by reason and persuasion, he will not attempt to subdue them by force; but will religiously observe what, by Cicero, is justly called the divine maxim of Plato, never to use violence to his country no more than to his parents. He will accommodate, as well as he can, his public arrangements to the confirmed habits and prejudices of the people; and will remedy as well as he can, the inconveniencies which may flow from the want of those regulations which the people are averse to submit to. When he cannot establish the right, he will not disdain to ameliorate the wrong; but like Solon, when he cannot establish the best system of laws, he will endeavor to establish the best that the people can bear.

The man of system, on the contrary, is apt to be very wise in his own conceit; and is often so enamored with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it. He goes on to establish it completely and in all its parts, without any regard either to the great interests, or to the strong prejudices which may oppose it. He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses upon them; but that, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might choose to impress upon it. If those two principles coincide and act in the same direction, the game of human society will go on easily and harmoniously, and is very likely to be happy and successful. If they are opposite or different, the game will go on miserably, and the society must be at all times in the highest degree of disorder.

Some general, and even systematical, idea of the perfection of policy and law, may no doubt be necessary for directing the views of the statesman. But to insist upon establishing, and upon establishing all at once, and in spite of all opposition, everything which that idea may seem to require, must often be the highest degree of arrogance. It is to erect his own judgment into the supreme standard of right and wrong. It is to fancy himself the only wise and worthy man in the commonwealth, and that his fellow-citizens should accommodate themselves to him and not he to them. It is upon this account, that of all political speculators, sovereign princes are by far the most dangerous. This arrogance is perfectly familiar to them. They entertain no doubt of the immense superiority of their own judgment. When such imperial and royal reformers, therefore, condescend to contemplate the constitution of the country which is committed to their government, they seldom see anything so wrong in it as the obstructions which it may sometimes oppose to the execution of their own will. They hold in contempt the divine maxim of Plato, and consider the state as made for themselves, not themselves for the state. The great object of their reformation, therefore, is to remove those obstructions; to reduce the authority of the nobility; to take away the privileges of cities and provinces, and to render both the greatest individuals and the greatest orders of the state, as incapable of opposing their commands, as the weakest and most insignificant.⁷²