"To Secure the Blessings of Liberty":
Liberty and American Federal Democracy
Daniel J. Elazar
The Preamble of the Constitution of the United States lists six
ends to which the Constitution is addressed: union, justice,
domestic tranquility, defense, general welfare, and liberty. The
last is presented most fully, to whit, "secure the blessings of
liberty to ourselves and our posterity." Taken together, those
six define the ends of republican government. To best achieve
those ends the American founders recognized that simple
republicanism was not enough, that what was required was a
compound republic, what we today call a federal system. The
history of the founding generation of the United States of
America is in no small measure a history of finding the way to
such a compound republic, what the preamble refers to as a "more
perfect union," the first item on the list.
For the founders, republicanism meant popular government, what
Daniel Webster and Abraham Lincoln were later to define as
"government of the people, by the people, and for the people."
Almost immediately most of them began to see that republicanism
of that kind had to be democratic republicanism. Hence, once the
Constitution was established, the thrust of the American
political experience has been in the direction of strengthening
the democratic aspects of the American compound republic.
Let us look at the six ends of the preamble once again and read
them as a list, placed in a certain order by design. I am not
claiming that the framers did so deliberately. I simply do not
know whether they did or not. But whatever their intention, what
emerges is a certain hierarchy of ends. The first step in the
achievement of the substantive ends is forming a more perfect
union. That will make it possible to establish justice, which in
turn will ensure domestic tranquility. Domestic tranquility
makes it possible to provide for the common defense and a country
both tranquil and secure by definition promotes the general
welfare at one level and can devote itself to further efforts to
that end. The highest of these ends is not simply liberty but
the blessings of liberty, that encompass justice, tranquility,
security, and welfare. The ends presented in the Preamble
represent, in a sense, a rephrasing of the ends presented in the
Declaration of Independence -- life, liberty and the pursuit of
happiness -- greater detail.
Union -- a compound republic -- is thus a means to larger ends,
but so important a means that it becomes an end in itself.
Lincoln was to emphasize this at the time of the Civil War when
he spoke of "the constitution, the Union, and the liberties of
the people" and argued that it was first necessary to preserve
the Union in order to preserve the other two. Lincoln well
understood that for Americans the blessings of liberty depended
upon the more perfect Union, that is to say, the compound
republic.
Our task is to examine the relationship between liberty and
American federal democracy as reflected in the Constitution of
the United States. We begin with two fundamental questions: What
kind of liberty is to be fostered in order to bring blessings?
How is it best fostered? We must begin our inquiry by
understanding that, as Donald Lutz has persuasively argued, the
Constitution of the United States is an incomplete document in
that it rests on the constitutions of the individual states.1
Thus any consideration of the larger question of the Constitution
and liberty is connected with the more specific question of this
paper because the United States is a compound republic and its
constitutional system is built accordingly.
What Kind of Liberty?
The American founders certainly did not confuse liberty with
anarchy. Their writings are peppered with comparisons
between the two whose conclusions were unequivocal. Indeed, fear
of anarchy was one of the major propellants toward
constitutionalism for most of the American leadership, Federalist
and Anti-Federalist alike. This fear was enhanced by the very
fact that they were making a republican revolution and
historically both revolutions and republics had been noted for
bringing about anarchy.
Just as they rejected anarchy, so too did they reject natural
liberty. Elsewhere I have discussed natural liberty as one of
the basic myths of the American experience, the idea that in this
new world of nature, humans are also freed from the shackles of
society to become "natural men."2 For the most part, the hidden
or not so hidden assumptions behind the myth of natural liberty
were that human society is corrupting while human nature is
unequivocally good and therefore what needs to done is to
emancipate humans from the chains of society so as to enable
their better natures to flourish unimpeded. Although this myth
was presented most systematically by Jean Jacques Rousseau, it
can be found back at the very beginning of the age of the
discovery and exploration of the Western Hemisphere. There were
those who saw in the native Americans natural men and, hence,
happily living in paradise. It was not difficult for them to
take the next step and to hope that Europeans arriving on the
shores of the New World could emancipate themselves from the
bonds of society and regain their true natures as well.
A variant of this myth with a somewhat less optimistic view of
human nature accepted that humans were not totally good by nature
but saw in the human confrontation with the challenges of nature
the true testing ground for "real men." This version of the myth
allowed first barbarism and even savagery, treating them as part
of the process of winnowing the wheat from chaff or separating
the gold from the dross. Perhaps the archetypical mythical
expression of this view was to be found in the myths of the
voyageuer and the mountain men, individuals who set out for the
wilderness, leaving civilization far behind, who had to survive
by honing their skills as men. Failure to do so almost
inevitably meant death at the hands of nature, while success
produced the hero who, by being in harmony with nature, rose
above the constraints of human law to a loftier morality. This
myth developed into the larger myth of the Western hero, who,
honed in the wilderness, could then come back to civilization to
restore and do justice beyond the limits of the law.3
In the 20th century, after the land frontier was closed and
opportunities for natural men to venture forth into vast
stretches of truly wild nature no longer existed, the myth of the
natural man took two turns. For the first half of the century,
aviators who were aviation pioneers or test pilots were viewed as
carrying on the natural man tradition. In a sense, Chuck Yeager
and his colleagues were the last of these natural men. After
them, as Tom Wolfe points out, came the astronauts who were more
pampered gladiators. (His book, The Right Stuff [Bantam 1983],
is a wonderful study in contrast and conflict between the natural
man test pilots of Edwards Air Force Base and the pampered
astronauts).4
More recently there has been a reversion to the first variant of
the myth, with individuals in society seeking to return to nature
not by confronting wilderness but by dropping social conventions
and by "doing what comes naturally" and "letting it all hang
out." The first represented a mild expression of the attack on
surviving Victorian conventions at the time of World War II, that
was part of the move to loosen the forms of society in the first
post-war generation, while the latter was one of the mottos of
the student revolt of the 1960s which sought to abandon social
convention altogether.
I repeat, natural liberty was not what the founders had in mind.
Even Jefferson, who was much closer to assuming the natural
goodness of man than the vast majority of his colleagues,
believed that the people had to live together in community in
order to develop civilization which, if simple enough, was a good
thing. Others, John Adams for example, drawing upon their
Puritan heritage, had no confidence in the innate goodness of
humans, even if they no longer believed in their innate
depravity. They could see the "old Adam" in all people and
viewed their task as building a political order that would
contain those human passions which led to depravity, and where
possible, channel them into more productive lines of activity,
thereby strengthening what Lincoln was later to call "the better
angels of human nature."
One of the basic tensions underlying the American experience is
between the myth of natural man and the countermyth of fallen
man, brought to American shores by the Puritans. The Puritan
view was summed up by the old couplet taught to children in
Massachusetts schools, "In Adam's fall, we sinned all." For
some, this view was fully Calvinist in its emphasis on total
human depravity except for the few elect, chosen of God by
predestination. For others, "the old Adam" was less than total.
Rather, humans had to know that they were swept by passions that
lead them to evil inclinations and that those inclinations were
all too easily translated into behavior appropriate to them.
In the Puritan view, humans had to be curbed by, not released
from social bonds. Rather than viewing nature as redeeming and
society as corrupting, they saw nature as corrupt and a properly
religious society as having the potential to, if not to redeem
(since only God could do that), at least to keep corruption
within bounds. Thus the laws of Massachusetts and other Puritan
commonwealths provided that no citizen should be allowed to
settle beyond the reach of civilization, ere he lapse into
savagery. It was the obligation of the polity to enact
legislation to preserve and strengthen morality and the task of
the magistrates to enforce that legislation.
In a sense, the American Constitution was the product of a
reconciliation of these two views, achieved in part through their
synthesis. Rejecting both myths, the founders saw humans as
mixed in their natures, having both good and bad inclinations.
The difference between them was the difference between Jefferson
and Adams, with some following Jefferson in expecting man to be
indefinitely perfectable if he lived under the right
institutions, and others viewing man as being of limited
perfectibility but capable of improvement through the right
institutions. In both cases there was a convergence around the
necessity for proper institutions. That is why Martin Diamond
could refer to the American revolution as "a revolution of sober
expectations."5
What emerged out of all of this was an understanding of liberty
as what, following John Winthrop and James Wilson, we may refer
to as federal liberty. Federal liberty, in the modern sense, is
the liberty to be a partner in establishing the covenant founding
civil society (hence federal, from foedus meaning covenant) and
then the liberty to live according to the terms of the covenant.
Both dimensions of the definition are important. Totalitarian
societies, both religious and secular, have emphasized the second
half alone. That is to say, in claiming their citizens are free
people, they define freedom or liberty as the liberty to obey the
rules of the church or polity which are unilaterally imposed, in
some cases in the name of God, and in others in the name of some
other transcendent historical authority, power, or force. True
federal liberty requires that humans be partners in making the
covenant which defines right and wrong and the rules of the game
that flow from that definition before they can be expected to
live according to them and that processes be provided for
reexamination of the terms of the covenant and, if necessary, to
change the rules. Even in those cases where God is considered a
partner or guarantor, that must be so. That is what
constitutionalism is all about.
In the American political tradition, federal liberty has taken
two forms. One, first enunciated by John Winthrop, deals with
the relationship between individuals and civil society, and the
other, first defined by James Wilson, deals with the relationship
between the states and the federal government under the
Constitution of the United States. Winthrop, one of the founders
of Puritan Massachusetts, enunciated his famous doctrine of
federal liberty in 1645.
There is a two-fold liberty, natural (I mean as our nature
is now corrupt) and civil or federal. The first is common to
man with beasts and other creatures. By this, man, as he
stands in relation to man simply, hath liberty to do what he
lists; it is a liberty to evil as well as to good. This
liberty is incompatible and inconsistent with authority and
cannot endure the least restraint of the most just authority.
The exercise and maintaining of this liberty makes men grow
more evil and in time to be worse than brute beasts: omnes
sumus licentia deteriores. This is that great enemy of truth
and peace, that wild beast, which all of the ordinances of
God are bent against, to restrain and subdue it. The other
kind of liberty I call civil or federal; it may also be
termed moral, in reference to the covenant between God and
man, in the moral law, and the politic covenants and
constitutions between men themselves. This liberty is the
proper end and object of authority and cannot subsist without
it; and it is a liberty to that only which is good, just and
honest. This liberty you are to stand for, with the hazard
(not only of your goods, but) of your lives if need be.6
Developed in the 17th century, Winthrop's full definition
reflects a republican pre-democratic understanding of the
political order. Recognizing this, we still can draw upon its
essence to understand the federal liberty of the individual in a
democratic civil society.
James Wilson, one of the delegates to the Constitutional
Convention from Pennsylvania, Scottish-born and educated, was a
product of the Scottish Enlightenment. In other words he came
out of the same Reformed Protestant tradition as the Puritans,
but identified with its more secularized expression as developed
in Scotland in the mid-18th century. In defining the appropriate
relationship between the states and the federal government, he
drew upon the same concept of federal liberty, for a secular
setting. (Wilson himself was a believer who saw natural law as
from God and at least partially revealed in the Bible).
For Wilson, federal liberty was the means of sharing the
attributes of sovereignty, with both the states and the federal
government deriving their powers by delegation from the sovereign
people through constitutional compacts in such a way that each
remained an instrument of the people, while at the same time
checking the other. His argument was that just as individuals
entering a political compact gained greater liberty by
surrendering part of their natural rights in exchange for a
limitation on the liberty of others to do them harm, so too did
the constituent states gain more by surrendering part of their
freedom of action to a general government in return for being
partners in a larger whole. "Federal liberty then is the liberty
to enter into a covenant or compact through which each party
surrenders certain of its natural liberties in order to gain more
from the new partnership created, to whose rules the parties are
then obliged to follow."7
A complete definition of federal liberty requires a synthesis of
Winthrop and Wilson to include the two dimensions of morality and
interest. American constitutionalism rests upon that synthesis.
This is not immediately apparent in reading the Constitution of
the United States.
Two Constitutional Traditions
It is well accepted that one of the great goals of the
Constitution was to establish a large commercial republic. This,
indeed, is the essence of the Federalist theory of
constitutionalism. Commerce is presented as an alternative to
republican virtue as a means of maintaining republican
government. Self-interest rightly understood is presented as the
motivation for the self-restraint necessary to maintain
republican government and "ambition countering ambition" (in the
words of The Federalist), the basis for controlling the excesses
of human energy. The original Constitution provides substantive
protection for only a very few liberties, relying instead on the
procedural guarantees built into the system of government it
establishes. The protected liberties are of three kinds, those
involving the physical liberty of the person, such as the right
of habeas corpus; those involving the freedom of the marketplace,
such as the guarantees of the right of contract and protections
of patents and copyrights and provision for a uniform rule of
bankruptcy; and those emancipating individuals from the effects
of family and religious ties such as the bans on bills of
attainder and religious tests for office. The Bill of Rights
further extended this effort to use the federal constitution to
protect individual rights and liberties, with nine of the ten
amendments being exclusively devoted to that subject.
All told, the federal constitution is oriented toward creating
and protecting a national marketplace, both political and
economic, and is oriented toward protecting that marketplace and
access to it on the part of all citizens as individuals. This
thrust has been continued in almost every subsequent
constitutional development whether by formal amendment or U.S.
Supreme Court interpretation. The Civil War amendments were
designed to open both marketplaces to blacks and, by extension,
other non-white groups. Most of the other amendments deal with
terms of suffrage and are also designed to extend access to the
marketplace -- to women and, most recently, to late teenagers.
To participate in the marketplace, one only need subscribe to the
rules of the game which, in the federal constitution, are
political rather than moral. The Constitution goes so far as to
specify that no religious test shall be used in connection with
federal office-holding and that what is required is that every
state, as well as the federal government, maintain a republican
form of government.
Were the federal constitution to stand alone, one could conclude
that morality and government were entirely separated in the new
American constitutional order. This is not, in fact, the case.
Since the federal constitution and the government it creates are
both incomplete and need the states to be complete, we must also
look at the state constitutions to see what kind of liberty they
are committed to protecting and fostering. Certainly in the
revolutionary period most of the state constitutions were
designed to foster commonwealths rather than marketplaces, that
is to say, polities that were both republican and committed to a
shared moral vision. It is not unfair to say that the federal
constitution could emphasize individualism and the marketplace
precisely because the founders could count upon the state
constitutions to emphasize community and commonwealth.
The idea that a proper republic should be a commonwealth grew out
of the Whig tradition developed in Britain and British North
America in the late 17th century and which reached its apotheosis
in the states at the time of the American revolution. The
original American state constitutions also followed the Whig
model. It was only after the adoption of the federal
constitution that there slowly developed a synthesis between the
Federalist and Whig constitutional models which began to
influence state constitutional development. Jacksonian ideas of
democracy were democratic adaptations of Whiggism rather than
deviations from it. It was only in the post-Civil War period
that the synthesis began to reshape state constitutions, most
particularly the constitutions of the newly-admitted Western
states.8
Liberty, under the commonwealth model, was concerned not simply
with individual rights but also with the preservation and
fostering of community. Thus communal liberties, while never as
important in the New World as in the Old, had a place within the
commonwealth model along with individual liberties. The federal
constitution, while making no such provision directly, tacitly
recognized the importance of communal liberties by leaving the
states free to protect and foster them as they pleased. The New
England and Southern states did so unequivolcally. Even in
matters of religion and state, Massachusetts and Connecticut went
so far as to maintain established churches into the 19th century
and New Hampshire did not strop its last religious tests until
the end of the Civil War generation. In other aspects of life,
the New England states continued to use the authority and powers
of government to maintain a certain moral order -- where they can
and there is consensus they still do. The Western states settled
by New Englanders reproduced a limited version of the New England
pattern.
In the Civil War, the Southern states, whether original or new,
were organized to maintain what Abolitionists called "slavocracy"
and rule by the "slave power" -- social systems resting on
slavery and concentrating power in the hands of a
plantation-centered elite. After the war and Reconstruction, the
political systems of the Southern states were used to reinstate
as much of the old system as possible through "Jim Crow"
segregation and disenfranchisement of the freed slaves and their
descendents. In the end, the revulsion of the majority of
Americans against that system was a major factor in overturning
the rights of the states to maintain thei own social systems. As
Abraham Lincoln repeatedly suggested, all Americans would have to
pay dearly for their "original sin" of black slavery and so it
has been.
The Middle States, on the other hand, were already well on their
way toward a redefinition of their commonwealths as marketplaces,
hence the Federalist approach suited them. They and especially
the new states in the West settled by Middle Staters, were the
first to embrace the Federalist model. Over time, more states
moved away from clearcut moral visions of their commonwealths,
making that model even more attractive.
On the other hand, on those few occasions when it was tried, the
federal constitution proved to be a very poor bulwark for
commonwealth goals. Its worst failure was in connection with the
prohibition of the consumption of alcoholic beverages, a moral
goal written into the Constitution through the 18th Amendment
which had the effect of encouraging alcoholic consumption, while
at the same time promoting organized crime. Repealed within half
a generation, those negative aspects of its legacy are still with
us.
How is Liberty Best Fostered?
Thus the American political system and its constitutional
tradition provide for the two great orientations of American
political culture -- marketplace and commonwealth -- and the
liberty associated with each through the maintenance of a
compound republic -- what we now call a federal system. The
marketplace is the clue here. Federal liberty is best fostered
through ordered rules of the game. These include fixed
elections, separation of powers, guaranteed rights of access, due
process, and federalism. Here it is not necessary to elaborate
on these ordered rules of the game, the idea behind them should
be clear. Fixed elections are necessary to assure that the
governors will always be responsible to and dependent upon the
governed for their offices. Guaranteed rights of access assure
that the marketplace is kept open to all legitimate participants.
Due process is necessary to maintain the people's standing in the
marketplace and to adjudicate their claims upon each other and
the marketplace as a whole. Separation of powers is designed to
prevent the overconcentration of power in any one individual or
institution. Bicameralism is designed to provide a possibility
for second thoughts in political decision-making, to foster
prudence and control enthusiasms.
Federal liberty is necessary to prevent the disasters of anarchy
and the diseases of natural liberty. Federal liberty is possible
without lapsing into totalitarian tyranny only when it is
constitutionalized so that there are ordered rules of the game
established by agreement among the participants in accordance
with prudence and reason. As we all know, the founders believed
that liberty could only survive if proper republican institutions
were established to both contain and foster it. Federalism
offers the means for combining the marketplace and the
commonwealth, allowing for fostering both individual and communal
liberties in appropriate ways.
Summarizing the Argument
The United States as a whole is built upon two contrasting
conceptions of the political order, both of which can be traced
back to the earliest settlement of the country. In the first,
the political order is conceived as a marketplace in which the
primary public relationships are the product of bargaining among
individuals and groups acting out of self-interest. In the
second, the political order is conceived to be a commonwealth --
a state in which the whole people have an undivided interest --
in which the citizens cooperate in an effort to create and
maintain the best government in order to implement certain shared
moral principals. These two conceptions have exercised an
influence on government and politics throughout American history,
sometimes in conflict and sometimes complementing each other.
They are particularly important in defining the relationship
between power and justice, the two poles of politics that between
them encompass the basic political concerns of all civil
societies, namely "who gets what, when and how" (power) and who
should in order to develop a good society (justice).
The major continuing task of every civil society is to shape the
relationships between these two faces of politics in a manner
that best fits its situation. Indeed its character as a civil
society is in large measure determined by the relationship
between power and justice that shapes its political order.
Consequently a particular civil society's conceptions of the uses
of power and the nature of justice are vital. Americans seek the
efficient use of power in the pursuit of liberty, equality and
happiness.
We may conceptualize power and justice as two poles connected by
a four-cell matrix. The top two cells of
the matrix represent the universal political demands, that is to
say, in every polity there is a close relationship between
efficiency and power and legitimacy and justice in the sense that
power is designed to be exercised according to the polity's
accepted conception of efficiency and used to advance what that
polity considers the legitimate ends of government. In the
United States, efficiency means government that is energetic and
efficacious with the least wasteful or minimum necessary
expenditure of resources, while legitimacy is determined by
American understandings of liberty, equality and happiness.
The lower two cells reflect the definitions of efficiency and
legitimacy of any given polity. In the United States, efficiency
is measured in predominantly commercial terms, as befits a great
commercial republic. Commerce in this sense embodies the
exchange of goods, services and ideas. The federal republic has
adhered quite closely to the original purpose of the U.S.
Constitution to advance and protect commerce. Commerce is
particularly valued because it is an efficient means of
organizing, harnessing and diffusing power in light of American
values through the marketplace. Americans characteristically rely
upon various kinds of marketplaces (political, economic, the
marketplace of ideas) to protect and foster liberty, as well as
to protect property and promote enterprise.
Americans have changed their conventional definition of what is
efficient in government as the organization of their commercial
enterprises has changed. In the 18th century, efficiency meant
first and foremost the efficiency of competition among
small-scale, relatively equal political entities within a
political-economic framework that provided protection for the
marketplace through active imposition of ordered rules of the
game. All this reflected the political economy of the time which
rested upon many small enterprises. In the late 19th century it
came to mean the hierarchical organization of enterprises in
monopolies or oligopolies reflecting an economic system of large
corporations built by great entrepreneurs. Governmental
reformers, in turn, sought to build a power center to replace the
existing noncentralized system in the name of efficiency.
During the first half of the 20th century those corporations
became complex bureaucracies governed by executive teams
specializing in management and finance and American definitions
of governmental efficiency changed in the direction of
bureaucratized power pyramids. More recently there is a change
in the direction of the decentralized conglomeration of
synergistic organizations and work groups controlled on the basis
of measures of their output. This has lead to a new interest in
decentralization in the name of more efficient government. In
every case, both efficiency and commerce are primarily related to
the concerns of power, its organization and management.
Legitimacy, on the other hand, is given meaning in the United
States by the particularly American complex of values and
aspirations associated with liberty, equality and happiness,
which I have elsewhere termed "agrarianism."9 The agrarian ideal
envisions the United States as a commonwealth of self-governing
freeholders, each with a tangible stake in his community and
hence in American society as a whole, raised to new heights of
human decency through the general diffusion of knowledge,
religion and morality. This agrarian ideal provides for the
protection of individual liberties, the maintenance or fostering
of equality, and the achievement of no small measure of
happiness.
American agrarianism stems from both the Puritan and Jeffersonian
roots of American life and has also undergone adaptations to the
changing circumstances of American history from the days of the
17th century Puritan village to late 18th century Jeffersonian
ward republic to 19th century commonwealth of homesteads to 20th
century suburb or exurb of free-standing homes. As the
embodiment of the nation's social and political mystique (a
future-oriented myth), it is the major source and test of
legitimacy in the United States. Both legitimacy and agrarianism
are related to the problem of the attainment of justice and are
expressions of the continuing effort to create a more just
society in the United States.
Each of the four cells in the matrix is modified by every other
one. Thus in every form it has taken, American agrarianism has
had a strong commercial aspect, beginning with the Americans'
desire to make a profit from the use of the land even while
valuing closeness to it for moral reasons. Unlike feudal or
peasant agrarianism, it has represented the effort to create a
moral commonwealth of religiously inspired freeholders actively
engaged in commerce in its various manifestations. By the same
token, the values of agrarianism modify commercial efficiency at
crucial junctures so that maximizing profits is not the only
measure of efficiency in American life, even as those values
themselves are tailored at some points to meet the demands of
efficiency. The politically-defined limits of commerce in
America are set by the demands of agrarian legitimacy.
Periodically the commercial aspects of American society have run
wild only to be pulled back in line sooner or later on the
grounds that they have been set free illegitimately. For
example, most monopolies are considered illegitimate even if they
are efficient from a commercial point of view. This common sense
illegitimacy is defined in terms of liberty, equality and
happiness.
The Situation Today
In the 20th century, particularly since the end of World War II,
there has been a shift away from the earlier synthesis between
marketplace and commonwealth in two ways. On one hand,
increasingly the states have been denied their historic
constitutional powers to support any particular moral order other
than that of the marketplace within their boundaries, by decision
of the U.S. Supreme Court. The Court has consistantly
interpreted the federal constitution in such a way as to extend
the marketplace into the commonwealths. Thus the powers of
government, particularly the state governments, have been denied
in matters connected with transcendent moral issues, whether in
the relationship between religion and state, obscenity and
pornography, abortion, Sunday closings, and required days of
rest, to name a few of the major issues.
In the case of segregation, this was a necessary and appropriate
exercise of the Court's responsibility under the Constitution. In
certain other cases, while constitutionally more dubious (e.g.,
pornography), the Court's decisions reflected changed public
opinion about the proper role of government in society, away from
the idea that government should support a shared moral consensus
to a greater emphasis on individualism and the right to privacy.
In still other cases, the Court imposed its new understanding of
the Constitution against the wishes of the states and of the
people (e.g., abortion, school prayer), but even in these cases,
the latter have been sufficiently divided so as to prevent
reestablishing state powers in any specific area in which the
moral issue predominated.
On the other hand, at least from the New Deal onward, the federal
government undertook to establish a new morality of equality for
the nation as a whole. It was supported in its efforts by the
U.S. Supreme Court and, sooner or later, by the people. In terms
of liberty, it can be said that the trend for the past 50 years
has been to limit traditional individual liberties, especially in
connection with property rights and freedom of association, on
behalf of equality, while expanding individual liberties in
matters of privacy and due process.
All of this has tended to emphasize the marketplace at the
expense of the commonwealth, in the sense that the federal
interventions in areas that have taken on moral dimensions on
closer look are designed to improve rights of access of all to
the various marketplaces of American life or to protect their
rights once in the marketplace. It seems to be a morality based
upon raising the ordered rules of the game from morally
sanctioned means to a moral end.
Most of the issues in question rest upon conceptions of morality
that transcend the ordered rules of the game and may even require
their partial suspension to achieve some higher end. That is
what the Court has rejected. One need not reject the substance
of the Court's decisions to recognize their effect on the body
politic. They have contributed mightily to creating a new and
very different moral climate in the United States, one in which
the older expectations of commonwealth and community are now
treated as oppressive examples of government intervention into
private lives and interference with individual liberties. Thus
the balance between marketplace and commonwealth upon which
American federal democracy rested and through which the liberties
of Americans were preserved, fostered and contained, has been
dealt a severe blow. It remains to be seen whether the United
States can survive that blow and remain the same kind of country
that it has been, or better yet, the country envisioned by its
founders.
Notes
1. Donald S. Lutz, "The Purposes of American State
Constitutions," Publius, vol. 12, no. 1 (Winter 1982), pp. 27-44.
2. Daniel J. Elazar, "Pluralism, Federalism, and Liberty,"
Chapter 2 in The American Constitutional Tradition (Lincoln:
University of Nebraska Press, 1988).
3. Cf. Dixon Wecter, The Hero in America.
4. Tom Wolfe, The Right Stuff (New York: Bantam, 1983).
5. Martin Diamond, A Revolution of Sober Expectations
(Washington: American Enterprise Institute, 1976).
6. John Winthrop, History of New England, 1630-1649, ed. Sam
Savage (Boston, 1853), II, 279-282.
7. Wilson at the Pennsylvania ratifying convention as quoted in
J.B. McMaster and F.D. Stone, Pennsylvania and the Federal
Constitution, 1787-1788.
8. Cf. Publius, vol. 12, no. 1 (Winter 1982), a special issue on
state constitutional design, especially the Introduction and Part
One.
9. Cf. Daniel J. Elazar, Cities of the Prairie (New York: Basic
Books, 1970), esp. Chapters 4, 5 and 6.
