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A Question for Independence Day

J. Kennerly Davis July 03, 2017
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As the Fourth of July fast approaches and we consider the many alternatives available for recreation and entertainment, it is fitting that we also ponder an important question tied closely to the deeper meaning of the day. 

It is a deceptively simple question, but one that encompasses the essence of every significant policy issue that confronts us as a nation. And the answer to the question will determine whether we survive as a free people.

The question to ponder on Independence Day is, simply: Where do rights come from?

In any system of government ultimate authority, sovereignty, must be located somewhere in the system. For most of recorded history, in most places, sovereignty has been located in the ruler:  the king or queen, warlord, chief, military commander or party chairman. 

In such a system of government the ruler is seen as the personal embodiment of legitimate state power. The scope of the sovereign ruler’s legitimate authority is defined and limited only by his ability and inclination to exercise his power. The sovereign ruler is effectively answerable to no earthly authority, and certainly not to the people who are merely subjects.

In such a system of government, where sovereignty is located in the ruler, the rights of individuals have been understood to be nothing more than the malleable artifacts of the ruler, with their scope and substance and tenure entirely dependent upon the ruler’s determinations and dispensations. The economic and social status of persons, their liberty, their very lives, are contingent upon their relationship with the ruler.

In 1776, our Founders turned this traditional concept of state sovereignty, and the relation of the ruler to the people, upside down. In Philadelphia, for the first time in history, a nation was founded on the proposition that the people themselves are sovereign.

Well-schooled in the teachings of John Locke and other liberal philosophers, the Founders held that all people are created possessing in equal measure certain natural rights that, taken together, entitle each person to lead the life and pursue the happiness of his or her own choosing, free from state tyranny and limited only by the need to respect the right of others to do the same. The rights of the people are inherent in their humanity; their rights are not created by the ruler, they pre-exist the ruler and the government.

The Founders explained that the purpose of the government they were creating, the only rightful purpose of any government, was to recognize, respect and protect the pre-existing natural rights of the people. Faithful adherence to this purpose is the precondition of the government’s legitimacy and the people’s consent to its rule. It’s all there in the second paragraph of the Declaration of Independence: the heart and soul of our nation and the foundation of a government of the people, by the people and for the people.

When the Founders met again in 1787, they drafted a Constitution that in its structure and substance reaffirmed the Declaration by establishing a federal government of enumerated and limited powers delegated by a sovereign people. The Founders’ purpose in 1787 was to more effectively secure the pre-existing natural rights affirmed in the Declaration. Years later, Lincoln would refer to the Constitution in structural terms as a frame of silver surrounding the gold of the Declaration. Reinforced by Lincoln’s leadership, America would maintain its commitment to the Declaration and the Founders’ Constitution for many years following the Civil War. As a result of this commitment, America enjoyed unparalleled progress and prosperity.

However, as the twentieth century unfolded, some Americans began to question the principles and institutions of our founding in light of the serious challenges that then confronted the country: large-scale concentrated industrialization, urbanization, mass immigration, labor unrest and the threat of world war and revolution.

Certain politicians and intellectuals - with Woodrow Wilson the embodiment of both - thought that the principles of natural rights, liberty and limited government embodied in the Declaration and the Constitution were outdated relics of a simpler past that dangerously undercut the ability of the government to effectively deal with the challenges that confronted it. Wilson and others believed they had more “progressive” ideas for the updated government they thought American needed.

Wilson and his fellow progressives turned away from England and traditional liberalism as a source of political inspiration. Instead, they turned to Imperial Germany and a Prussian model of government that had rejected constitutional constraints. Impressed by the prerogatives and regimenting efficiency of German bureaucracy, the pacifying effect of the German welfare system and the exhilarating implications for state power contained in German philosophy, the progressives sought to create nothing less than a “new republic” to meet the new challenges of the modern era.

In their new republic, the progressives replaced our revolutionary founding concept of inalienable natural rights with the age-old concept of malleable rights that are created and then distributed and redistributed by the government according to its evolving policies and constituencies. Wilson’s hostility to natural rights was such that he argued for ignoring the second paragraph whenever the Declaration was studied and discussed. In reality, the progressives are better thought of as regressive counterrevolutionaries.

Supreme Court Justice Brandeis captured this regressive progressive mindset perfectly when he wrote in a 1921 opinion that the “rights of property and liberty of the individual must be remolded from time to time, to meet the changing needs of society.”

This view that rights are simply the malleable artifacts of government is the core concept that defines and drives the administrative state. And it is the root cause of the serious problems that have been created by the administrative state.

All the inefficiencies and inequities of modern economic regulation that we find so troubling, from the endless rat’s maze that typifies the permitting process, to the crony-corporatist regulations that favor entrenched incumbents while discouraging innovative new entrants, and the heavy-handed enforcement actions brought against small property owners, all are best understood as the result of a regulatory process based upon a world view that regards the possession, use and disposition of property as activities undertaken not as a matter or right, but only with and to the extent allowed by government permission.

Likewise, the zero-sum struggle among competing constituencies for funding to support unsustainable “entitlements,” the bitter divisions borne of grievance group politics, and the growing assault on freedom of speech and religion, all these problems are also best understood as the bitter fruit of the same mindset, one that locates sovereignty in the government while reducing the people to the status of subject supplicants constantly competing for the ever changing privileges defined and distributed by the ruler.

The progressives tragically miscalculated when they dismissed the timeless value of our founding principles and commitment to natural rights and constitutional government. It took years to displace the Founders’ vision, and it will take years more to restore that vision and recapture the many benefits that flow from liberty and limited government.

There are many challenges that confront us, many problems with the administrative state, and many particular issues of law and public policy to be debated and resolved. In addressing each issue we should first ask ourselves the ultimate question, the answer to which will guide the policy debate in one direction or the other. It’s the question we should all ponder on Independence Day, the 241st anniversary of our natural rights republic:

Where do rights come from?

J. Kennerly Davis, Jr. is a former Deputy Attorney General for Virginia, and he currently serves on the Executive Committee of the Administrative Law & Regulation Practice Group. Contact him at j.kendavis@verizon.net.

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