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August 24, 2009
Exclusive: The Moral Nation
Left alone, man will impose his will on others; his natural inclination is toward authoritarianism. He will impose his will to satisfy his appetites, his whims, and his curiosity. He will do it for a reason or for none at all. At the same time, his preferred state of being is in freedom. That stands to reason, since freedom is man’s natural condition and that which gives him the power to control his own circumstances. Freedom is a – perhaps the – universally accepted good. Government must, then, be instituted, if at all, as a means of achieving the good – which is to say protecting the freedom of its citizens.
The Founders held that that protective purpose is government’s great imperative. They accepted that the purpose of government is to secure the freedom of the people. It is a moral duty as we believe that freedom is the natural and preferred condition of Man. Some believe it is God’s gift to Man. Either way, its preservation is a moral enterprise and the society that is organized to secure it, the Moral Nation. It accomplishes that purpose, in part, by preventing each from imposing his will on the other, lest that imposition limit the freedom and prerogatives of the victim of control. In that sense too, government is an instrument of morality; its very purpose, a moral one.
A philosophy of statecraft, then, is a subset of ethics for it creates the formal structure out of which will flow what we have defined in these pages as a government of liberty: the Moral Nation. It must ensure the basic protection of the individual that each may enjoy the widest possible freedom. Government must be an instrument of good, observing objectively determined moral values. It exists so that no individual may arbitrarily take the life or property or rights of another It exists so that no individual will, without justification, do his neighbor harm.
We have lately been taught that morality is a matter of opinion and that any opinion is as good as the next. But that is not true. It is universally accepted that it is immoral for any man to arbitrarily violate another. It is objectively true that freedom is the preferred state of man and liberty his natural condition. It is universally believed that freedom is an objective good to be cherished and protected. It is objectively true that a state of freedom is preferred to any alternative. A governmental system that would be “good,” then, would protect that greatest of “goods” for the greatest number.
The Moral Nation must create and maintain a system of laws to prohibit acts which impinge on freedom. It must create and maintain a means of preventing citizens from committing such acts and punishing those who do. Most important for the advancement of its moral, protective purpose, though, it must create and maintain a system of justice that ensures that government, in the exercise of its legitimate power of protection, does not, itself, become an instrument of arbitrary coercion, ensuring that none may be subject to government sanction unless he has committed acts in derogation of the rights and prerogatives of others.
Accepting that government’s prime, moral purpose is the protection of individual freedom and autonomy, it follows that the acts government proscribes to individuals may not morally be committed by government itself except as a means of advancing and protecting the freedom which is its purpose. Its protective purpose must not, then, be limited to the relationship of man to man. It must protect every citizen from harm not only at the hands of other people, but from government itself. The Moral Nation must, therefore, create and preserve a government that is self-limiting against which citizens have a means of redress. It must maintain a system that protects citizens against arbitrary governmental action if its purpose is protective and not coercive.
Having accepted that government’s moral purpose is the protection of its people and their freedom, the Moral Nation must create a structure that maintains that idea as inviolate. We have lately taken to the shorthand of defining ours as a democracy. That is because individual freedom requires that government be controlled by popular vote; each citizen having as much power as the other in the shaping of government. But in a democracy the majority inevitably rules. The Moral Nation, on the other hand, is based on immutable moral principles derived through experience, reason and the nature of Man. It must, as we have seen, establish limits on its own power and, hence, on the power of those who control it: the people. It cannot be governed by the temporary passions of the people who may or may not feel constrained by the established moral purpose of their government. Otherwise, there is no defined moral purpose; no protective structure; no Moral Nation.
To ensure the vitality of the Moral Nation, the people must establish by consensus the moral basis and purposes of government and agree on its power and limitations. But even agreement among the majority will not constitute a moral purpose unless that purpose is that which protects the greatest freedom for the greatest number and protects all from arbitrary power. Having established a charter of freedom, the society must describe the power and limitations of the government and reduce it to a compact – a contract between and among the people that governs their conduct and the conduct of their government and serves as a constraint upon transitory public enthusiasm.
This must be done to protect all from the passions to which the people can succumb in times of great dislocation. We have seen those times throughout our history. If we were a pure democracy, there would have been nothing wrong in the internment of American citizens of Japanese ancestry during the Second World War because that was the popular will. There would have been nothing wrong with denying blacks the franchise in the South because that was majority preference. A purely democratic system would be immoral because it would not ensure the protection of individual freedom for all citizens. Convulsions of popular will can sometimes occur but a protective charter containing a means of redress will provide the power to overcome it and ensure the preservation of government’s moral purpose.
This is not a new problem. Edmund Burke viewed with alarm the arguments advanced for a purer form of democracy. He understood the danger it represented to liberty articulated, as it was, in the name of freedom itself. “And the votes of the majority of the people, whatever their infamous flatterers may teach in order to corrupt their minds, cannot alter the moral any more than they can alter the physical essence of things. The people are not to be taught to think lightly of their engagements to their governours; else they teach governours to think lightly of their engagements towards them. In that kind of game, in the end, the people are surely to be the losers.” Democracy without moral constraint is tyranny.
Once the people have agreed on a compact that defines the Moral Nation and establishes it as an enforceable rule, it must not be easily changed lest the moral purpose for which the government was formed be lost. The Founders did that in adopting the Constitution that set forth the powers and limits on government and the Bill of Rights which buttressed the theory that the Constitution created a government of limited powers by providing that all power and prerogative ultimately rests with the people. The Moral Nation maintains its moral purpose only by ensuring that its original compact remains inviolate, its terms and protective provisions interpreted as those who wrote it intended.
Still, we can foresee that advances in learning can result in evolving notions of morality which might require alterations in Constitutional structure. There must, therefore, be a means of amending the charter to address changes in historical circumstance. To ensure the change is not merely the vindication of public passion and an exercise of arbitrary power, amendment must be difficult. It must so plainly represent a true consensus that it can be seen as undeniably necessary carrying with it no threat to the vitality of the purpose of the Moral Nation.
The Founders recognized that change might be made necessary so they provided a means of amendment. But they made sure that change could be enacted only with vast consensus; requiring agreement on the part of the people’s representatives by a two thirds vote of both houses of Congress as well as by vote of three fourths of the states. No amendment not seen as absolutely necessary and overwhelmingly endorsed by the people will ever modify the basic power and purpose of our government.
The preservation of the settled charter is of paramount importance to the preservation of the moral purpose of the government established by its principles. If amendment is made hard to ensure that its original terms are preserved, it follows that the charter must be read restrictively and in accordance with the original intention of the parties who created it. A broad reconstruction of the meaning of a compact through an attenuated interpretation of its terms, results, in my business, in a lawsuit for breach of contract. I can illustrate the point with a simple analogy. Tom agrees to buy all the stock in Bill’s company for $10 a share after having performed an analysis of value and deciding that was a fair price. They enter into a contract of sale with a closing date 100 days from the signing of the contract. Before closing, however, the value of the company’s sales plummet and Tom decides that the contract should be interpreted in accordance with present circumstances. He interprets the contract not as requiring him to pay $10 per share, as originally agreed, but as his having to pay only the value of those shares as they exist on the day of closing.
But a contract must read in accordance with the understanding of the parties at the time it was entered into, not on the basis of circumstances as they evolve. Contracts can be amended and if circumstances change that suggest they should be modified, there are structures in place that enable the parties to do so. But all parties must agree. It is not proper to interpret a contract in light of a change in circumstances while it is pending. It must be construed in accordance with the stated, or, if unstated, original intentions of the parties when the contract was signed. Tom’s interpretation would be a breach of contract.
That is why the charter of the Moral Nation must be interpreted in accordance with the understanding of those who write it. If the moral purpose of the government it establishes is to be preserved, the architecture that creates it cannot be altered by re-imagining its meaning based on changed circumstances. Doing so would suggest that we can, by fiat, change the meaning of words to mean the opposite of their settled definitions and it would threaten the structural integrity of the charter itself.
So it is with our Constitution. The Founders sought to establish the Moral Nation and they succeeded. In doing so they entered into a compact – a contract between and among the people – its first line, “We the People.” It described the limited government the Founders believed necessary for the protection of individual liberty and the assumption was that the government had the powers described and no others. Some came to the conclusion that the original writing was not sufficient to emphasize the primacy of the people and the inherent limitation to which the new government was subject. So, they developed amendments that included among them two that are the most ignored – the Ninth and Tenth – which specifically limit the power of government and emphasize that the people’s freedom is paramount; their rights fully retained by them. Those amendments make clear the Founders’ notion that liberty is not a gift of government but a gift of God; a natural right of man.
The Moral Nation is secured by its compact which sets in stone the power and limits of a moral government – one that secures the liberty of the people – and it must not be easily thrust aside by reinterpretation lest freedom itself be the victim.
Family Security Matters Contributing Editor John W. Howard is a lawyer, specializing in corporate and business litigation who also founded a non-profit, public interest law firm specializing in First, Second and Tenth Amendment issues. Feedback: editorialdirector@familysecuritymatters.org.
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