WHEN JOHN LOCKE WROTE about the nature of man in the state of nature, he faced skepticism from some contemporaries. But his description was not theoretical. Indeed, not only was his influence on the American founding significant, but he rightly pointed to America as evidence for his observations and conclusions that individual self-interest and self-preservation, the right to life and liberty, the use of labor to improve and possess property, and equality in justice formed the natural state of human existence. And the quality of this existence promotes industriousness, sociability, civility, economic prosperity, and charity among men. “Everyone as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he as much as he can to preserve the rest of mankind, and not unless it be to do justice on an offender, take away or impair the life or what tends the preservation of the life, the liberty, health, limb, or goods of another” (Second Treatise, 2, 6). “It is often asked as a mighty objection, where are, or ever were, there any men in such a state of Nature? … The promises and bargains for truck [trade], etc.… in the woods of America, are binding to them, though they are perfectly in a state of Nature in reference to one another for truth, and keeping the faith belongs to men as men, and not as members of society” (2, 14).
Concisely put, this is the heritage and lineage of the American people, which dates hundreds of years before the American Revolution and transcends all else. From the earliest settlers escaping persecution or seeking opportunities in the New World, to the original colonies asserting self-rule through popular sovereignty and numerous local governing bodies; from the demand for independence, the assertion of inalienable individual rights, and the Revolutionary War, to the founding of the constitutional republic to secure individual liberty and the civil society, the American people engaged in the most widely considered and far-reaching exploration of humanity—its meaning, cultivation, and application—in world history. Even half a century after the adoption of the Constitution, the character and psychology of the American people were apparent to Alexis de Tocqueville, who wrote, “They have been allowed by their circumstances, their origin, their intelligence, and especially by their morals to establish and maintain the sovereignty of the people” (Democracy in America, I, 54).
When the fifty-five delegates met in Philadelphia in 1787 at what became known as the Constitutional Convention, their purpose was not to transform American society but to preserve and protect it. In Federalist 51, James Madison later explained the decisive task this way: “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.” Charles de Montesquieu’s advice guided the Framers. He wrote that laws “should relate to the degree of liberty that the constitution can sustain, to the religion of the inhabitants, their inclinations, their wealth, their number, their commerce, their mores, and their manners.…” (Spirit of the Laws, 1, 1, 3)
The debates between the Federalist and Anti-Federalist camps did not involve fundamental disagreements about the nature of man and inalienable rights, about which there was near-universal consent and for which a revolution had been fought and won, but how best to arrange a government, after the revolution, to ensure the perpetuation of American society. The delegates at the constitutional and state conventions feared above all else the concentration of too much power in the new federal government. In fact, at the Constitutional Convention, the delegates specifically considered and rejected a proposal by Delaware’s Gunning Bedford for a broad grant of power to Congress to pass laws of general interest, or where states might be said to be incompetent, or where state action might be said to disrupt the harmony of the nation. Although the delegates sought to establish a federal government that would overcome the deficiencies of the Articles of Confederation, Bedford went much too far. Virginia’s Edmund Randolph objected that under Bedford’s scheme, state constitutions and laws would be of no consequence and Congress could intervene at will in state affairs.1 Bedford’s proposal went nowhere.
Not only was there no support for an all-powerful central government, but the delegates at the Constitutional Convention spent most of the summer trying to figure out how to ensure that no office or officeholder in the new federal government would become too powerful. As is well-known, they separated powers between and among the legislative, executive, and judicial branches and enumerated the powers within each branch in considerable detail.
The delegates also opposed majoritarianism in its purest forms for it encouraged factionalism and threatened individual sovereignty, should a group or majority succeed in controlling the government and imposing their will on society. Consequently, the only direct elections would occur in selecting members of the House of Representatives; senators would be chosen by the states; although the people would vote for president, the president would ultimately be elected by members of an electoral college; and judicial candidates would be nominated by the president for confirmation or rejection by the Senate.
The Framers believed they had done what they could, through the Constitution, to fend off tyranny by the few and the many.
Still, the Anti-Federalists were not convinced, and ratification of the Constitution in several states was in jeopardy. Madison and others tried to alleviate the objections. In Federalist 39, Madison argued that the federal government had only “certain enumerated” powers and the states retained “residuary and inviolable sovereignty” over all else.2 In Federalist 45, he asserted that the proposed federal powers were “few and limited” and the power in the states remained “numerous and indefinite.”3 Nonetheless, Virginia’s George Mason, among many others, insisted that more was needed to contain federal authority and safeguard the states’ plenary power. In order to secure the Constitution’s ratification, the Federalists eventually agreed to introduce a set of amendments in the 1st Congress, which had been widely accepted in advance, further delineating and underscoring the limits of the federal government respecting its potential abuse against the individual and usurpation of the states. They became known as the Bill of Rights.
Much has changed in America, and for the worse. I am not speaking of the natural change, evolution, and progress that flows from spontaneous interactions among free people, which is mostly desirable, essential, and regular. In fact, it is the disposition of the civil society. It is the reason for advancements and developments in new products, services, technologies, science, medicine, etc., and the source of the nation’s economic vibrancy and prosperity. Contrarily, the underlying factors and values that make possible the civil society, which center on the liberty and rights of the individual, have been and are being devitalized and stifled by utopian masterminds who substitute their preferences, objectives, and decisions—including rewarding their political allies and supporters—for a free people.
The means by which these utopians amass their power is through the federal government. The federal government has become unmoored from its origins. As a result, America today is not strictly a constitutional republic, because the Constitution has been and continues to be easily altered by a judicial oligarchy that mostly enforces, if not expands, federal power. It is not strictly a representative republic, because so many edicts are produced by a maze of administrative departments that are unknown to the public and detached from its sentiment. It is not strictly a federal republic, because the states that gave the central government life now live at its behest. America is becoming, and in significant ways has become, a post-constitutional, democratic utopia of sorts. It exists behind a Potemkin-like image of constitutional republicanism. Its essential elements and unique features are being ingurgitated by an insatiable federal government that seeks to usurp and displace the civil society.
Montesquieu warned of government’s threat to civil society unless it follows a moderate course. “May we be left as we are, said a gentleman of [a republican government]. Nature repairs everything” (3, 19, 6). Tocqueville believed that America had, effect, heeded Montesquieu’s counsel. “Nothing is more striking to a European traveler in the United States than the absence of what we term the government, or the administration.… The administrative power in the United States presents nothing either centralized or hierarchical in its constitution; this accounts for its passing unperceived.…” (I, 70–71) However, that was then. America has been transitioning from a society based on God-given inalienable rights protective of individual and community sovereignty to a centralized, administrative statism that has become a power unto itself. It appears nearly everywhere as a dominant fixture and intrusive force in daily life. If its interventions are with limits, the limits are increasingly difficult to define. The circle of liberty, which was once expansive, and within which the individual was largely unmolested in his manner and pursuits, is shrinking rapidly as less and less area is left for him to live without torment.
The architects of America’s unmaking are too numerous to list, let alone examine with particularity. However, the most prominent include Woodrow Wilson, who merits at least brief attention.
In 1908, as president of Princeton University and prior to ascending to the Oval Office in 1913, Wilson authored a treatise titled Constitutional Government in the United States. Yet, Wilson wrote not of the Constitution as is but as he wished it to be—that is, denuded of its carefully crafted limits on the central government.
Wilson asserted, “No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle.”4 Clearly, Wilson dismissed not only the Declaration of Independence and the Founders’ announced purpose for American independence, but the Lockean exposition on natural law, the nature of man, the social compact establishing the civil society, and the essential ingredients of constitutional republicanism (shared broadly by most of the best thinkers of the European Enlightenment). In short, for Wilson, rights are awarded or denied the individual as determined by the government.
Underscoring this point, Wilson argued, “Government is a part of life, and, with life, it must change, alike in its objects and in its practices; only this principle must remain unaltered,—this principle of liberty, that there must be the freest right and opportunity of adjustment. Political liberty consists in the best practicable adjustment between the power of the government and the privilege of the individual; and the freedom to alter the adjustment is as important as the adjustment itself for the ease and progress of affairs and the contentment of the citizen.”5 Notice Wilson’s use of the word privilege in lieu of inalienable rights when discussing the status of the individual in his utopia, underscoring the malleability of rights at the hands of masterminds.
For Wilson, government is to be treated as a living being; indeed, it is the most important of beings. Identifying man with the state and the state with man is typical of utopians. In the Republic, Plato wrote that “a just man won’t differ at all from a just city in respect to the form of justice; rather he’ll be like the city” (435b). Thus man ought not fear government but surrender to it, embrace it, and be at one with it. The Framers’ efforts to restrict federal power with checks and balances, etc., would, in Wilson’s view, deprive oxygen to the body of government just as assuredly as would restricting the various organs of man.
In furtherance of this analogy, Wilson wrote, “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 a theory. Leadership and control must be lodged somewhere; the whole art of statesmanship is the art of bringing the several parts of government into effective cooperation for the accomplishment of particular common objects, and party objects at that. Our study of each part of our federal system, if we are to discover our real government as it lives, must be made to disclose to us its operative coordination as a whole: its places of leadership, its method of action, how it operates, what checks it, what gives it energy and effect. Governments are what politicians make them, and it is easier to write of the President than of the presidency.”6
Wilson took direct aim at Montesquieu as the source of the Framers’ single-minded and supposedly misplaced reliance on divided government. “The makers of our federal Constitution followed the scheme as they found it expounded in 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 quoted 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 his touch.…”7
Wilson’s objective was to centralize and consolidate power in the federal government and redefine the relationship between it and the individual. His assignation of human characteristics to the federal government was an argument for maximalist federal power where the central government has unrestrained flexibility and freedom to operate, and where the rights of actual human beings are diminished and their pursuits restricted. The individual lives to serve the body politic and, in turn, the politicians who oversee it. Wilson wrote, “The trouble with the theory [of limited, divided government] is that government is not a machine, but a living thing.… It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day of specialization, but with a common task and purpose. Their cooperation is indispensable, their warfare fatal. There can be no successful government without leadership or without the intimate, almost instinctive, coordination of the organs of life and action. 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 in structure and in practice.”8 Wilson’s reference to Darwinism highlights his notion of the federal government in a constant state of motion and evolution, where the Constitution and the government it establishes are no longer fixed or predictable. The individual and society generally are to serve the nutritional demands for eternal governmental growth, in the form of power, demanded by Wilson’s utopian dogma.
Wilson would substitute Locke’s civil society and Montesquieu’s limits on government with a form of Thomas Hobbes’s social compact. In describing his “great Leviathan,” Hobbes argued, “Every man should say to every man I authorize and give up my right of governing myself to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in a like manner.” “That Mortal God to which we owe, under the Immortal God, our peace and defence.” And in this Sovereign “consisteth the essence of the commonwealth, which is one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves every one the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defence” (Leviathan, 109). For Wilson, the federal government, and particularly the president, takes on the qualities of Hobbes’s Sovereign. Indeed, Wilson proclaimed, “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.”9 There are few demagogues and tyrants who would disagree with such a prescription.
Wilson argued further, as he had to, that the federal courts are not bound to the Constitution. “The weightiest import of the matter is seen only when it is remembered that the courts are the instruments of the nation’s growth, and that the way in which they serve that use will have much to do with the integrity of every national process. If they determine what powers are to be exercised under the Constitution, they by the same token determine also the adequacy of the Constitution in respect of the needs and interests of the nation; our conscience in matters of law and our opportunity in matters of politics are in their hands.”10 Moreover, the only legitimate opinions the federal courts can render are those that endorse and promote the expansion of federal power. “[T]hat if they had interpreted the Constitution in its strict letter, as some proposed, and not in its spirit, like the charter of a business corporation and not like the charter of a living government, the vehicle of a nation’s life, it would have proved a straight-jacket, a means not of liberty and development, but of mere restriction and embarrassment.”11
What, then, should guide federal judges if not the Constitution? Apparently their uniquely innate wisdom. Wilson wrote, “What we should ask of our judges is that they prove themselves such men as can discriminate between the opinion of the moment and the opinion of the age, between the opinion which springs, a legitimate essence, from the enlightened judgment of men of thought and good conscience, and the opinion of desire, self-interest, of impulse and impatience.”12
Therefore, the purpose of the judiciary is to sanction, if not clear the path for, the extraconstitutional actions of the federal Leviathan, especially the president. Wilson argued for a judicial oligarchy that would, in essence, sanction the rewriting of the Constitution in accordance with his utopian belief in what Plato characterized in the Republic as an Ideal City. In fact, so difficult are the Constitution’s amendment processes that the courts are encouraged to circumvent them and to be praised when they do. “The character of the process of constitutional adaptation depends first of all upon the wise or unwise choice of statesmen, but ultimately and chiefly upon the option and purpose of the courts. The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretation,—the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by the provisions of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say more lax, in their interpretation than they would otherwise have been. The whole business of adaptation has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity.…”13
Even Tocqueville misjudged the federal judiciary’s capacity for steamrolling its way through the Constitution and society. He wrote, “It is true, the Constitution had laid down the precise limits of the Federal supremacy; but whenever this supremacy is contested by one of the states, a Federal tribunal decides the question. Nevertheless, the dangers with which the independence of the states is threatened by this mode of proceeding are less serious than they appear to be.… [I]n America the real power is vested in the states far more than the Federal government.” Tocqueville believed that “[t]he Federal judges are conscious of the relative weakness of the power in whose name they act; and they are more inclined to abandon the right of jurisdiction in cases where the law gives it to them than to assert a privilege to which they have no legal claim” (I, 143).
Furthermore, Wilson’s utopianism necessarily grants Congress extensive and expanded power to legislate without regard to, or over the top of, the states. The entire federalist approach, so crucial during the founding and to the Framers of the Constitution, and without which there would have been no United States, must be demolished. “What, reading our Constitution, in its true spirit, neither sticking in its letter nor yet forcing it arbitrarily to mean what we wish it to mean, shall be the answer of our generation, pressed upon by gigantic economic problems the solution of which may involve not only the prosperity but also the very integrity of the nation, to the old question of the distribution of powers between Congress and the States?”14 Notice Wilson’s arrogance when he claims he is not insisting that the Constitution reflect “what we wish it to mean”—that is, what he wishes it to mean—but that he is simply revealing “its true spirit.”
Of course, Wilson read the Ninth and Tenth amendments out of the Constitution, as they are the most explicit statement of individual and state sovereignty in the Constitution. His view has been adopted by most federal courts in modern times, using the Civil War and popular opinion as sham rationales for licensing unfettered federal authority. “The old theory of the sovereignty of the States, which used so to engage our passions, has lost its vitality. The war between the States established at least this principle, that the federal government is, through its courts, the final judge of its own powers.”15 Furthermore, “we are impatient of state legislatures because they seem to us less representative of the thoughtful opinion of the country than Congress is. We know that our legislatures do not think alike, but we are not sure that our people do not think alike.…”16
Wilson contended that this is all necessary and proper. Indeed, it is the inevitable tide of history and mankind’s fate. “Undoubtedly the powers of the federal government have grown, have even grown enormously, since the creation of the government, and they have grown for the most part without amendment of the Constitution. But they have grown in almost every instance by a process which must be regarded as perfectly normal and legitimate. The Constitution cannot be regarded as a mere legal document, to be read as a will or a contract would be. It must, of the necessity of the case, be a vehicle of life. As the life of the nation changes so must the interpretation of the document which contains it change, by a nice adjustment, determined, not by the original intention of those who drew the paper, but by the exigencies and the new aspects of life itself. Changes of fact and alterations of opinion bring in their train actual extensions of community interest, actual additions to the catalogue of things which must be included under the general terms of the law.…”17 Again, Hobbes would approve. As Hobbes wrote, “So that it appeareth plainly, to my understanding, both from reason and Scripture, that the sovereign power (whether placed in one man, as in monarchy, or in one assembly of men, as in popular and aristocratical commonwealths) is as great as possibly men can be imagined to make it.…” (135)
Throughout his treatise, Wilson used the lexicon of the Constitution to justify its deconstruction—a practice employed regularly by utopian masterminds today, including those who serve as judges and justices. He argued that the federal masterminds and their experts were best qualified to rule over the people, yet he simultaneously claimed they were most knowledgeable of and responsive to the opinion of the people—another rhetorical device adopted by modern utopian politicians and propagandists. Hobbes wrote, “Nothing the sovereign representative can do to the subject, on what pretence soever, can properly be called injustice, or injury, because every subject is author of every act the sovereign doth.…” (138)
Moreover, Wilson proved the insight of Madison’s fear—that is, without the Constitution’s limits on the federal government’s authority, an election could empower a temporary majority or faction to fundamentally alter the governmental structure in ways that threaten the individual’s liberty and rights. Furthermore, since the federal courts are free to exercise extraconstitutional power and, according to Wilson, have the final word, elections that deliver results contrary to utopian ambitions become largely inconsequential in containing or reversing those ambitions, for the masterminds, in the name of the people, can blunt or reverse them.
Wilson argued for obstructing every avenue for preserving or reestablishing constitutional primacy by corrupting the Constitution itself. Having emptied it of its original purpose, the Constitution would become the vessel into which the utopians pour their agenda. The president is to be as powerful as he can, the courts are to rewrite the Constitution at will, and the Congress is to rule over state legislatures without limits. The federal government, therefore, could never be tamed. Its utopian direction could not be effectively altered. The entire American enterprise would be corrupted. Montesquieu observed that “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.… [I]n 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” (1, 3, 3). In despotic government, “virtue is not at all necessary to it.…” (1, 3, 8)
So perverse was Wilson’s language and thinking that “virtue” would be defined by its opposite—deceit. Wilson advocated nothing short of a diabolical counterrevolution, by means of contorting the instrumentalities of government, to undo the purposes of the American Revolution. He sought to supplant the basic character of American society and the nation’s founding with a supreme central government. The greater the liberty and flexibility of the federal government to act, the more debilitated the individual, for he is the focus of its designs. The individual is, in fact, lost in this scheme. Locke explained that “freedom from absolute, arbitrary power is so necessary to, and closely joined with, a man’s preservation, that he cannot part with it but by what forfeits his preservation and life together.…” (4, 22)
A few decades later, Wilson’s post-constitutional utopianism would serve as a blueprint for Franklin Roosevelt. Much like Wilson, before climbing to the presidency Roosevelt revealed his own contempt for the Constitution’s limits on federal power. He, too, conflated the nature of civil society with the tyranny of unbridled government. Roosevelt also insisted that although the utopian counterrevolution was supported by most Americans, its full realization was thwarted by divisions among the utopians and obstructions by an intransigent conservative minority. In his 1926 Whither Bound address, Roosevelt argued, “In the methods of our governing … we have come to accept, or at least to discuss without fear, problems and methods formerly mentioned only by wild-eyed visionaries.… Probably on any given problem of modern life, if a count or classification could be made, the out-and-out conservatives would be found to be in a distant minority. Yet the majority would be so divided over the means by which to gain their ends that they could not present sufficient unity to obtain action. This has been the history of progress.… Measured by years the actual control of human affairs is in the hands of conservatives for longer periods than in those of liberals or radicals. When the latter do come into power, they translate the constantly working leaven of progress into law or custom or use, but rarely obtain enough time in control to make further economic or social experiments. None of us, therefore, need feel surprise that the government of our own country, for instance, is conservative by far the greater part of the time. Our national danger is, however, not that it may for four years or eight years become liberal or even radical, but that it may suffer from too long a period of the do-nothing or reactionary standards. Certainly it would appear on the surface that a natural advantage lies with those among us who dislike to see change. It is so much more easy to accept what we are told than to think things out for ourselves. It takes courage, too, to disagree with our everyday companions; the obvious path is simpler to follow than one of our own making.”18
Roosevelt repositioned the utopians as enlightened, modern, and futuristic, and, conversely, presented the advocates of civil society and constitutionalism as obstructing individual and societal progress. “If, then, we realize that the days in which we live present great problems wholly new, we may adopt one of two attitudes. Some among us would stop the clock, call a halt in all this change, and then in some well-thought-out way bring back an orderly, defined method of life. Old standards and customs would revive to meet the new conditions, classic dicta would again govern—the ‘good old days’ restored. It is an attractive picture, but it is a painting of the imagination—not a photograph of the living facts. The other method—but let us wait till we look into the days to come.… I have spoken of the up-and-down curves of history—or rather of the periods of quiescence followed by rushing, active progress. We are in the midst of one of the latter now. Are we at the end of it? Are we about to slow up, to begin to digest in comparative quiet the huge meal of new activities given to the human race in the past fifty years? I think not. On the contrary. I believe that more new and startling developments will take place in the immediate future than in the immediate past. With these will come other great changes in the lives and doings and thoughts of the average man and woman. Can we, by artificial means, call a halt? Obviously not.”19
As president, Roosevelt undertook a wholehearted and thoroughgoing makeover of the nation. No more uneven progress of which he had complained a decade or so earlier. Since I,20 and others, have written extensively about the New Deal’s details, there is no purpose in rehashing them here. However, it is well summed up by Roosevelt’s manifesto—his 1944 State of the Union speech, delivered near the end of his presidency, in which he proposes his Second Bill of Rights.21
Roosevelt told the nation, “This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty. As our nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness. We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. Necessitous men are not free men. People who are hungry and out of a job are the stuff of which dictatorships are made.”22
Here Roosevelt cleverly but deceptively deviated from the Declaration of Independence. Inalienable rights belong to every individual and are not political but God-given and natural. The phrase “inalienable political rights,” as Roosevelt labeled them, is not unlike Wilson’s use of the word privilege, for they both imply the government has the authority to grant or deny the individual “the right to life, liberty, and the pursuit of happiness.” Therefore, the individual has no real rights independent of those recognized by the government. Furthermore, Roosevelt argued that “true individual freedom” requires “economic security.” By this he did not mean the protection of the individual’s private property but its antithesis—that is, the dispossession of the individual’s property as the government sees fit. Of course, if individuals do not produce goods and services, there is nothing that even a mastermind can redistribute. As Locke explained, “I think it will be but a very modest computation to say, that of the products of the earth useful to the life of man, nine-tenths are the effects of labor. Nay, if we will rightly estimate things as they come to our use, and cast up the several expenses about them—what in them is purely owing to Nature and what to labor—we shall find that in most of them ninety-nine hundredths are wholly to be put on the account of labor” (5, 40). No government can re-create let alone improve upon man’s nature, where he is free to invent, create, and produce; pursue, acquire, and maintain property; and enter into beneficial commercial arrangements, which not only improve the individual’s life but enrich society generally.
In fact, Locke anticipated and rejected the tyranny of radical egalitarianism. “God gave the world to men in common, but since He gave it them for their benefit and the greatest conveniences of life they were capable to draw from it, it cannot be supposed He meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational … not to the fancy or covetousness of the quarrelsome and contentious. He that has as good left for his improvement as was already taken up needed not to complain, ought not to meddle with what was already improved by another’s labor. If he did, it is plain he desired the benefit of another’s pains, which he had no right to, and not the ground which God had given him, in common with others, to labor on, and whereof there was as good left as that already possessed, and more than he knew what to do with, or his industry could reach to” (5, 33). Moreover, Locke argued that not only does the individual have the right to preserve his property in the state of nature, but the primary purpose of the commonwealth is to protect his property against transgressors—which is linked inextricably to “his life, liberty, and estate” (7, 87–88).
In his Second Bill of Rights, Roosevelt succinctly described the societal and economic mission to which he had committed the federal government during the course of his presidency, and which he strived to make eternal. He said, “In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed. Among these are: The right to a useful and remunerative job in the industries or shops or farms or mines of the nation; to earn enough to provide adequate food and clothing and recreation; of every farmer to raise and sell his products at a return which will give him and his family a decent living; of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; of every family to a decent home; to adequate medical care and the opportunity to achieve and enjoy good health; to adequate protection from the economic fears of old age, sickness, accident, and unemployment; to a good education.”23
These are not rights. These are tyranny’s disguise. By dominating the individual’s property, the utopian dominates the individual’s labor; by dominating the individual’s labor, he dominates the individual. There is little space between Roosevelt’s premise and the distorted historical views of Marx and Engels. They insisted that “[t]he selfish misconception that induces you to transform into eternal laws of nature and of reason, the social forms springing from your present mode of production and form of property—historical relations that rise and disappear in the progress of production—the misconception you share with every ruling class that has preceded you. What you see clearly in the case of ancient property, what you admit in the case of feudal property, you are of course forbidden to admit in the case of your bourgeois form of property” (The Communist Manifesto, 39). They insisted that all ties must be severed with the past. “In bourgeois society … the past dominates the present; in Communist society, the present dominates the past.… [I]n Communist society accumulated labor is but a means to widen, to enrich, to promote the existence of the laborer” (36).
Indeed, Roosevelt’s worldview harks back to Thomas More’s Utopia, a precursor to Marx’s workers’ paradise, where the individual’s labor and property are ultimately possessions of the masterminds and subject to their egalitarian designs. More wrote, “Thither the works of every family be brought into houses, and every kind of thing is laid up several in barns or storehouses. From hence the father of every family or every householder fetcheth whatsoever he and his have need of, and carrieth it away with him without money, without exchange, without gage, pawn, or pledge. For why should any thing be denied unto him, seeing there is abundance of all things and that it is not to be feared lest any man will ask more than he needeth? For why should it be thought that that man would ask more than enough, which is sure never to lack?” (78) And, of course, by ensuring that life’s necessities are plentiful, Utopia eliminates poverty, inequality, and want. “This fashion and trade of life being used among the people, it cannot be chosen but they must of necessity have store and plenty of all things. And seeing they be all thereof partners equally, therefore, can no man there be poor or needy” (84).
There is no denying Roosevelt’s revolutionary fervor. Whereas the Founders broke from tyranny, Roosevelt and the utopians broke from the Founders. Cass Sunstein, a former academic now employed by President Barack Obama as administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget, in 2004 wrote approvingly that “America’s public institutions were radically transformed under Roosevelt’s leadership. The federal government assumed powers formerly believed to rest with the states. The presidency grew dramatically in stature and importance; it became the principal seat of American democracy. A newly developed bureaucracy, including independent regulatory commissions, was put in place. The foundations of the transformation are best captured in a changing understanding of rights, often requiring helping hands.… By 1944, Roosevelt argued, the real task was to implement the second bill [of rights].…”24 Sunstein proclaimed, “We live under Roosevelt’s Constitution whether we know it or not. The American Constitution has become, in crucial respects, his own.”25
Roosevelt’s Constitution, as Sunstein labeled it, is eerily similar in certain significant respects to the former Soviet Union’s list of Fundamental Rights, set forth in Chapter X of its 1936 Constitution. For example:
ARTICLE 118. Citizens of the U.S.S.R. have the right to work, that is, are guaranteed the right to employment and payment for their work in accordance with its quantity and quality.…
ARTICLE 119. Citizens of the U.S.S.R. have the right to rest and leisure.… The institution of annual vacations with full pay for workers and employees and the provision of a wide network of sanatoria, rest homes and clubs for the accommodation of the working people.
ARTICLE 120. Citizens of the U.S.S.R. have the right to maintenance in old age and also in case of sickness or loss of capacity to work. This right is ensured by the extensive development of social insurance of workers and employees at state expense, free medical service for the working people and the provision of a wide network of health resorts for the use of the working people.
ARTICLE 121. Citizens of the U.S.S.R. have the right to education. This right is ensured by universal, compulsory elementary education; by education, including higher education, being free of charge; by the system of state stipends for the overwhelming majority of students in the universities and colleges.…26
What are we to make of this? Whittaker Chambers, who had been a member of the Communist Party USA, Soviet spy, proponent of the New Deal, editor at Time magazine, and who later condemned communism and the New Deal, wrote in his 1952 autobiography, Witness, “I had to acknowledge the truth of what its more forthright protagonists, sometimes unwarily, sometimes defiantly, averred: the New Deal was a genuine revolution, whose deepest purpose was not simply reform within existing traditions, but a basic change in the social and, above all, the power relationships within the nation. It was not a revolution of violence. It was a revolution by bookkeeping and lawmaking. Insofar as it was successful, the power of politics had replaced business. This is the basic power shift of all the revolutions of our time. This shift was the revolution. It was only of incidental interest that the revolution was not complete, that it was made not by tanks and machine guns, but by acts of Congress and decisions of the Supreme Court, or that many of the revolutionists did not know what they were or denied it. But revolution is always an affair of force, whatever forms the force disguises itself in. Whether the revolutionists prefer to call themselves Fabians, who seek power by the inevitability of gradualism, or Bolsheviks, who seek power by the dictatorship of the proletariat, the struggle is for power.”27
The “living Constitution” is a constitution on its deathbed. The Founders are dismissed as quaint or worse—ancients, slaveholders, and landed gentry. This is as it must be, for utopianism is bigger than history and politics. It is a break from the past. The utopians are impatient, anxious, and frenetic, for life is short, destiny calls, and a fantastic future awaits humankind if only man, with all his flaws and imperfections, would relent or get out of the way. Therefore, the earthly grind of societal reinvention must continue unabated. One hundred years after the publication of Wilson’s Constitutional Government in the United States and sixty-four years after Roosevelt delivered his Second Bill of Rights speech, presidential candidate Barack Obama declared, “We are five days away from fundamentally transforming the United States of America.” Five days later, he was elected president.28 The counterrevolution, which is over a century old, proceeds more thoroughly and aggressively today than before.