IF YOU ARE GOING TO DEFY THE MIGHTIEST EMPIRE ON earth, you might exercise a little caution. Especially if you have hardly any government and hardly any army, you might look for a way to appease. You might express the hope that the emperor keeps his power over everyone else, and not you. You might distinguish your case: our circumstances are special, and no other subjects of the emperor need follow us. If your potential allies, the nations that do not like your emperor, are also monarchies and aristocracies, you might assure them that you like their form of government just fine. Tell them to keep it. Tell the emperor only to leave you alone; say that you are no danger.
The Declaration of Independence does not adopt this tone. It begins:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
This idea of equality and consent of the governed seems to have been important to the Founders. It mattered enough for them to flaunt it before powerful adversaries who were likely to be inflamed by it, to parade it before potential friends who were likely to be repelled. What does it mean?
This is a hard question to answer because we are so obviously not equal. Think of the differences among us. Some are qualified to play offensive tackle in the NFL. To do this, one must be exceptionally large, not to mention quick and strong enough to defend the blind side against people also huge, strong, and swift. And among the small subset of us who are so qualified, not all are excellent in mind and character. Such men are few, and they are not “equal.”
Or consider a young woman who is capable as an undergraduate of producing original and important scholarship on Elizabethan poetry. This would be another small subset among us. Add the attributes of beauty and moral virtue, and smaller still. Such a young woman is not “equal.”1
This is the rule you see everywhere, in common objects and refined, in old things and new, in large things and small. Each individual thing is its own thing with its own qualities and capacities.
Take that ordinary object we mentioned in the last chapter, the cup. Cups are all different, some widely so. There is the golden chalice, and there is the upside-down paper cone beside the water cooler. The first is sought through quests and valiant deeds related in story and song; the second is used, crumpled, discarded, and forgotten. The two objects are in these respects nearly opposite, as different as heavy and light, as shining and dull, as precious and common, as lasting and ephemeral. In these respects they are not equal. They are not even similar.
But then again, there is that one attribute in which the two objects are equal: they are both cups. It is actually easier to describe what makes the golden chalice special, or the paper cup common, than it is to describe what makes both of them cups. And yet to recognize the cup in each of them is a work of intuition that every rational creature performs instantly and without error. It seems that things can be equal without being similar. They can have the same nature despite wide variations in every accidental respect. This common nature is so obvious as to be the subject of propositions that are called “self-evident.” If one understands the proposition, he sees the proof. All cups are created equal.
So are all men. It is “self-evident” that they are “created equal.” And just as with cups, so with men their equality does not require that they are even similar in any respect except the essential ones. Our NFL player is very large and quick; most of us are much smaller and slower. Our young scholar has a gift for the use of words and the penetration of their meaning; most of us are not so facile. Yet he and she are men, which is to say human beings, and in that respect they are equal, both to each other and to us. The differences are very great in obvious physical and intellectual respects, and yet in essential respects they are nothing.
The essential similarity among humans may be harder to see when they are standing together, their differences manifest. It is easier to see when they are compared to something else. Such a comparison is right there in the Declaration of Independence, and we have already mentioned it. God is named four times in the Declaration. We can consider another human being both excellent and powerful, but we are not likely to think him the Creator, divine Providence, or the Supreme Judge of the World. We might think someone very fair and good, and we might trust that person’s judgment implicitly. We are not likely to think him the very Author of the laws of nature and of nature’s God.2
Some might think God an imaginary being and ask, what good is it to compare ourselves to something made up? The answer is that if God is an imaginary being, he is a being very easy to imagine. That is because we can see ourselves and the other creatures around us. If we can see what is different between a beast and a man, then it is not hard to imagine what would be the next step after man. If we can see inside ourselves which are the better and which the worse capacities, then we can imagine a being with only those better capacities.3 If we can see that these better capacities that we possess are still imperfect in us, then we can imagine them perfected. Not only the Bible but also the classic authors conclude that nature points to the heavens.
Speaking of these other creatures, the beasts, they, too, help to display for us the nature of our equality (which is another way of saying the nature of our nature). We can compare ourselves to the beasts by observing them directly: they are here around us, sometimes too much around us. Anyone who travels on airplanes a lot will enjoy the story of a large pig being admitted to a seat on a flight from Philadelphia to Seattle. The owner of the pig allowed that the animal was her “therapeutic pet companion,” and the poor gate agent acquiesced: the pig even got a ticket in first class. The pig did not act like the other passengers on the flight. There were snout marks on the windows. There were intrusions of the snout into people’s laps. There was running up and down the aisle in squeals of panic in response to turbulence, accompanied by some incontinence. Neither the most nor the least remarkable human passenger on any airline flight could be mistaken for this pig. Compared to the pig, the most and the least remarkable among us look perfectly like the rest of us, that is, perfectly “equal.”4
The pig, by the name of Charlotte, traveled on USAir on October 17, 2000. Her owner, a Ms. Andrews, denied that the pig was ill behaved. The Federal Aviation Administration said that it had no complaint to make about the presence of Charlotte. A spokesperson for USAir said pigs would no longer fly on that airline.
This distinction between man and God, on the one hand, and man and beast, on the other, underlies our political arrangements and has often emerged as the explicit basis of our policy. The pig himself has sometimes mattered. Abraham Lincoln had a series of debates with Stephen Douglas over the question of slavery and its growth into the “federal territories,” the land belonging to the Union not yet incorporated as states. This was the specific point of issue that led to the Civil War. In one debate, Douglas argued that we can take our property, including our hog, into the Nebraska territory and the law will protect our ownership of it. Why not our slave? Lincoln replied,
[I]nasmuch as you do not object to my taking my hog to Nebraska, therefore [you say] I must not object to you taking your slave. Now, I admit this is perfectly logical, if there is no difference between hogs and negroes. . . . I wish to ask whether you of the South yourselves, have ever been willing to do as much? . . . The great majority, South as well as North, have human sympathies, of which they can no more divest themselves than they can of their sensibility to physical pain. . . . In 1820 you joined the North, almost unanimously, in declaring the African slave trade piracy, and in annexing to it the punishment of death. Why did you do this? . . . The practice was no more than bringing wild negroes from Africa, to sell to such as would buy them. But you never thought of hanging men for catching and selling wild horses, wild buffaloes or wild bears.5
Lincoln argued that we manifest our knowledge of human equality even when we are cruel and unjust to one another. We always (except when we are simply insane) manifest some reservation or shyness about our actions. The Alabama slave code was a particularly harsh one. It contained restrictions on how long a slave could be indoors on another property than his owner’s plantation, on how many slaves could gather and for how long, on the nature of the discussions they were permitted to have. But there were exemptions for some of these regulations for religious meetings. Those exemptions evince knowledge even among the slaveholders, even among those who supported the institution most strongly, of the humanity of the slaves.
Similarly the Nazis were more ready to work their atrocities on their victims than they were to talk about it candidly. For his part, Stalin admitted to Churchill that he killed millions of people but then went on to make a justification for doing it, a claim that some good would come to mankind because he did it.6 The people he killed in this case were farmers, and he caused them to be starved to death. Even he saw that this was more controversial than killing the livestock that those farmers were tending.
Thomas Jefferson relied on the clarity of this comparison between man and beast in one of the last letters he ever wrote. It was written on June 24, 1826, ten days before the fiftieth anniversary of the Declaration of Independence and the day of Jefferson’s death. Jefferson was writing to decline an invitation to the gala celebrations in Washington of that anniversary. His health would not permit him to go. And he added a little summary of the meaning of the Declaration:
All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.7
A man may ride a horse and tell him where to go without violating the rights of the horse because he does not thereby interfere (so long as he does not abuse the horse) with any natural property of the horse. The horse does not choose as a human chooses: he will obey his instinct, or he will obey his master. He does not carry responsibility for his actions in the way that humans do precisely because he does not have the gift of reason. Reason displays to us the things in their kinds, and also the implications of better and worse that are apparent in them. Reason permits us to weigh means and ends, and to choose the one for the sake of the other. The rational being lives in a rich moral universe, populated with good and bad, right and wrong. Horses do not.
This gift of reason is not only the basic ground of human equality; it is also the ground of all rightful authority or governance. It is not only that men may rule beasts because they are rational and beasts are not; it is also that the rational parts of the human being are equipped, and therefore entitled, to govern the nonrational parts. The Constitution of the United States is written with a view to this distinction. It seeks to encourage the right ordering of the body politic along the lines of the right ordering of the soul. This is crucial precisely because the Constitution steadfastly refrains from placing any authority over people outside their consent.
Now, you may think that if reason is the title to rule, then the most rational person should be the ruler. There is something to this. The authority of parents over children stems in part from the fact that the children have not yet fully succeeded to their rational abilities. It cannot be denied that George Washington was better equipped, not only by his reason but also by the sum of all his virtues, to be president than most people, including most people who have been president. Why does it not then follow that possession of virtue gives one authority to rule? Why should the less virtuous have to consent before they are ruled? Why do governments derive “their just powers from the consent of the governed”? Why should not philosophers rule?
The answer has to do with the whole of our nature. It is true that we are the only creatures with the gift of reason. It is also true that in other respects we are like the animals. We have bodies and needs, and therefore we have interests. We have both pleasures and pains, and these are more acute in us than in animals that are not reasonable: other animals do not have a critical distance from what is happening to them, whereas we have immortal souls. We know our mortality through these immortal souls; we feel it acutely as we age. Therefore our wants and passions that go with our needs are powerful. Our passions provide a fuel or motive force for our actions; we need them, and the information they give us contains a lot of truth, but they can get out of hand.
Moreover, our reason is imperfect, in part because it is connected to our passions, in part because it does not see clearly. We can see this within ourselves because sometimes we can think more clearly than we can at others. Also, we converse with people who are especially good at reasoning. We find such people delightful, and yet even these people make mistakes and are not always at their best. This is one reason why it is easy for us to imagine what God or angels may be like. Just think of someone who is always as well ordered and clear-seeing as you are at your best moment, and yet that person can see and comprehend all, which you can never do. You are building up a picture of something divine.
Also, every human being, whatever his capacity (except in those rare cases where his reason is entirely disabled by illness or other condition), possesses within himself the ability to direct himself and his labor, to provide for himself and his loved ones. This is essentially connected to the gift of reason, and the requirement to use it is essentially connected to the fact of our being animals, animals with reason and also animals with bodies. To take this from us is to take something that is every bit as much a natural property as our reason.
The great majority of us will never make any money playing NFL football, which requires gifts we do not have, as well as massive labor that speaks of many qualities of character. These things are the football player’s own, born in him and developed by his life’s labor. He must decide, along the course of his career, many difficult things: whether to accept a further contract, when the time comes, with the team for which he plays. If he refuses it, he might get a bigger one later, or he might get hurt and lose the chance. These risks are his own, and the mind to think about them is his own, and therefore the choice is his own. No one has the right to make it for him.
Similarly with the young scholar: How will she balance the love of learning and teaching with her desire to be a wife and mother? These are her own choices to make as well.
This is what James Madison means by the “diversity in the faculties of man, from which the rights of property originate.”8 We are born with needs, and we are born with faculties with which to supply those needs. As the needs are ours, and the faculties are ours, so the deployment of the faculties is ours. Abraham Lincoln described the relationship between our reason, our needs, and our labors with his beautiful common poetry at a Wisconsin fair:
Free Labor argues that, as the Author of man makes every individual with one head and one pair of hands, it was probably intended that heads and hands should cooperate as friends; and that that particular head, should direct and control that particular pair of hands. As each man has one mouth to be fed, and one pair of hands to furnish food, it was probably intended that that particular pair of hands should feed that particular mouth—that each head is the natural guardian, director, and protector of the hands and mouth inseparably connected with it; and that being so, every head should be cultivated, and improved, by whatever will add to its capacity for performing its charge. In one word Free Labor insists on universal education.9
Wisdom is worth something, it is true. But according to Lincoln’s simple observation of the nature of man, even the wisest man has interests of his own, having a mouth of his own to feed. These interests will not be exactly the same as those of others. And even if his wisdom is great, it is not as great at one time as it is at another. This means that his wisdom alone, given the whole of his nature, cannot give him a title to govern, unless the governed give their agreement. Otherwise, he would be taking something from others that belongs to them, and he would be doing so without any assurance that he will behave as an angel might behave exercising such authority. For that reason, human beings must hold the means of their well-being in their own hands. This is the reason that government must be limited, so that we in private society may do that.
The necessity of government by consent is written, therefore, in the fact of human equality. That is also the basis for limited government. The very reason we have constitutional rule has to do with the fact that we are neither angels nor beasts, but in between the two. Think again about this statement by James Madison:
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.10
Equality, we can see, is essential to comprehending nature as the Founders conceived it. Also, government by consent is a necessary deduction from the equality of men in nature. To the Founders, these ideas are inseparable. Today, they have been separated in our understanding.
The idea of nature, as the Founders used it, is not so popular among us today as it was in their time. Especially is this true among the extensively educated. We tend not to imagine a world populated by abiding things, things with a nature, so much as a world of transient things. We tend to think things evolve, and to think this process of evolution or development to be the fundamental fact; the one abiding fact is that nothing abides. This difference is somewhere near the heart of our difference with the Founders and with most of human thinking before them.
Because the idea of nature in the Founding and the idea of equality in the Founding are so connected as to trace their source to the same place, it would seem to follow that we today must not like the idea of equality any better than we like the idea of nature. But this is not true: we like equality very much. It is the touchstone of American politics today as much as ever it was. But that is possible only because its meaning has been adjusted, and this adjustment is the chief reason for the changes in our politics. Today we think of equality as an outcome, something that comes about as a result of activity both personal and political, rather than the condition under which our actions begin and operate. Equality is now a thing that we can make.
There are powerful arguments to support this idea. First of all, there is the downside of the old idea of equality—namely, inequality. If we mean by inequality the enjoyment by some of luxury amidst idleness, and the privation of others amidst toil and trouble, then no one likes that, likely not even the rich. If we mean by inequality that a man must have two jobs, and his wife two jobs as well, and still have trouble supporting their children, no one likes that. If we mean by it that workers are hungry while the bosses are fat, no one likes that. If we mean by it that some identifiable group, marked out by the color of skin or the source of ancestry, has relatively little, while other groups so identified have more, we all feel ashamed of that. If that is inequality, then the cure is equality. We should make people more equal. That is the equality we think of today.
The modern argument, the argument of the “Progressives,” is that the Founders’ idea of equality is not superseded, but transcended, by events. In their day inequality came in the form of the king, born to rule, and his nobles, born to help him. They had the dominant place in politics and the economy. Now things have changed, and both the danger and the opportunity are different. Now the spread of freedom has done just what James Madison said it would do: it has liberated some of us to prosper, and we have set ourselves up in fine style. And once we have arrived at the pinnacle, we take all kinds of actions to keep others below us. Now we do not have kings and royalty, but we have something else: “royalists of the economic order”11 and “malefactors of great wealth.”12The concentration of wealth that they command threatens the whole economy because if something is not done, there will be no consumers left to buy the things that workers make, and then there will be no jobs, and then there will be no profits for the factory owners, and finally we will all end up in a common destruction.
Progressives argue also that we cannot really have the security of our property unless all of us guarantee the property of one another. If we live in peril of our livelihoods, then all of our freedoms are compromised. “Necessitous men are not free men.”13 Also: “the political equality we once had won was meaningless in the face of economic inequality.” In the face of the new economic threats, American citizens “could only appeal to the organized power of government.”14 “In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a Second Bill of Rights.”15 These words were written during and just after the Great Depression. Surely government has to become more involved in the economy and other parts of society to prevent such crises.
Many events, including the Great Depression, revealed to the new Progressive thinkers that through the evolution of time, there is an evolution of rights. Unless we keep up with that evolution, and even begin to shape that evolution, we will be overcome and lose all rights. It is the job of government, they believe, to protect equality through new measures to guarantee that the results of economic competition do not get out of hand. It is a powerful and persuasive argument, and it has remade the workings of our government to a place almost beyond recognition.
It had to be this way, argue the new thinkers, because times have changed. It is the way of times to change, and the Founders were wrong to think they do not. The kind of government they built is not adaptable to the new circumstances, so we have to change it. In particular, we have to organize government to be more active in more ways, and also it must be more scientifically based. In fact, we have to invent a new kind of government system, the very “fourth branch” that Professor Klarman from chapter two likes so well. This new branch will be able to perform all kinds of wonderful things because of its training. Also, it will be wholly focused on the public good because it will operate quite outside politics and beyond political control, and also because its members will be safe in their jobs. If you give people permanent employment and good salaries, they will not want anything else. They will not pursue their own interests because all their interests are satisfied. They will get along with one another very well because they will run a unified system; legislative, executive, and judicial powers will be rolled into a single agency.16 It is, in a certain way, an emulation of the divine governance of the universe, except it will be done by men.
This is the origin of the entitlement state and the administrative system that goes with it. Built on a different understanding of nature, of equality, and of consent, it proposes different policies and different ways of pursuing them. It sets out to solve the problems of want, misfortune, and injustice in the society. It holds out the great hope of a planned and rational society, in which none need suffer unduly and all who suffer will have relief. These are the new self-evident truths it has discovered.
I have not set out here to make the case about the consequences of these policies. They are evident everywhere. No one today argues seriously that the administrative state in Washington, which is of unprecedented size and still growing, is neutral about politics, as was intended. Some think its political influence is for good, and some do not. Some think that the great achievements of desegregation and the social safety net are attributable to this system. Some deny that and think that the breakdown of the family and the growth of a chronic underclass are its children. Some think it has made us rich; some, that it has made us broke. We will not settle that here, or in any book, but in the court of public opinion, that highest tribunal on earth.
The first step is to be aware of the contrast between the two views of equality and the two views of rights. They are not compatible. One or the other must be chosen. There is no halfway house between them.
The Founders’ view holds that nature, equality, and consent speak with a single voice and even, because they require and include each other, in a single word. The more modern or Progressive view thinks them severed: nature is an outmoded idea, which means that it was never a true idea. Consent must be relaxed in the name of equality: we can all come out well if we give a greater power to the government to act unfettered. Equality is a construct. Any group may identify itself as oppressed, and the feeling of oppression is powerful evidence for the claim. Above all, equality has to do with outcomes. The “different and unequal faculties of acquiring property” must be suppressed or channeled by the government into productive avenues in order to bring about the desired outcomes.17
The Founders thought that all our rights are connected. Our right to property is based on the same facts as our freedom of speech. Our right to the material things that we earn is founded in the same nature as our freedom to worship and pray as we please. Our civil and political rights depend on our ability to hold the means of our well-being in our own hands. We can have no rights of any kind that do not leave “to everyone else the like advantage.”18 This means that nothing properly called a right takes anything from anyone else.
The Progressives think that we must surrender title to our property into a common pool so that all can have their property guaranteed. They think that our civil rights are now long since assured, and can even be regulated, in order to make sure we live better and more harmoniously together.19
The Founders thought that the government must rest entirely on public opinion. They thought the powers of government, and also the influence of people on the government, must be organized through forms that restrain as they empower, elevate as they license. The Progressives think that a new kind of administration, built in part on the sovereignty of scientific knowledge and practices, could solve the problems of society in ways that have never been known. This kind of government must above all be empowered to act. Form must give way to function.
The Founders thought that the greatest effort in relief of poverty in human history is the building of a free republic, protecting equally the right to property and resting on consent through a free Constitution. They thought that this would give rise to a system of local government, run mainly by volunteers, that would be involved in every kind of relief of the needy. They thought that churches and other philanthropies would flourish in aid of those who fell behind. They thought that people would grow in the strength and practice of self-government to be as good as people can be.20They thought that universal education, run like every other matter of domestic administration—without bureaucracy or central control—would help to provide the ideal of the first free nation on earth. Lincoln, a great student of the Revolution, would call this “an open field and a fair chance” to all.21
The Progressives think the Founders’ system imperfect. The Founders thought so too. Men, they thought, are not angels. They can live well and freely, but this is not heaven.