Wednesday, June 29

An Experiment in Liberty

The great liberties that we enjoy in America have been secured against the arbitrary and fickle whims of men and movements by the rule of law. Our social system was not designed so as to depend upon the benevolence of the magistrates, or the altruism of the wealthy, or the condescension of the powerful. Every citizen, rich or poor, man or woman, native-born or immigrant, hale or handicapped, young or old, is equal under the standard of unchanging, immutable, and impartial justice.

As Thomas Paine wrote in Common Sense, the powerful booklet that helped spark the War for Independence, "In America, the law is king."

If left to the mere discretion of human authorities, even the best-intended statutes, edicts, and ordinances inevitably devolve into some form of tyranny. There must, therefore, be an absolute against which no encroachment of prejudice or preference may interfere. There must be a foundation that the winds of change and the waters of circumstance cannot erode. There must be a basis for law that can be depended upon at all times, in all places, and in every situation.

Apart from this uniquely Christian innovation in the affairs of men and nations, there can be no freedom. There never has been before, and there never will be again. Our Founding Fathers knew that only too well.

The opening refrain of the Declaration of Independence affirms the necessity of that kind of absolute standard upon which the rule of law can then be established:

"We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable 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."

Appealing to the "Supreme Judge of the World" for guidance, and relying on His "Divine Providence" for wisdom, the Framers committed themselves and their posterity to the absolute standard of "the laws of nature and of nature's God." A just government exists, they argued, solely and completely to "provide guards" for the "future security" of that standard. Take away those guards, and the rule of law is no longer possible.

That is precisely why they felt compelled to so boldly declare their autonomy from the British realm. The activist government of the Crown had become increasingly intrusive, burdensome, and fickle and thus the possibility of rule of law had been thrown into very real jeopardy. The Founders merely protested the fashion and fancy of political, bureaucratic, and systemic innovation that had alienated the inalienable.

They said that the King's government had, "erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance." It had, "called together legislative bodies at places unusual, uncomfortable, and distant. . .for the sole purpose of fatiguing them into compliance with the King's measures." It had, "refused assent to laws, the most wholesome and necessary to the public good." It had, "imposed taxes without consent. . . taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our government." And it had, "plundered our seas, ravaged our coasts, destroyed the lives of our people. . .and excited domestic insurrections amongst us."

The Founders believed that no one in America could be absolutely secure under the king, because absoluteness had been thrown out of the constitutional vocabulary. Because certain rights had been abrogated for at least some citizens by a smothering, dominating political behemoth, all of the liberties of all the citizens were at risk because suddenly arbitrariness, relativism, and randomness had entered into the legal equation. The checks against petty partiality and blatant bias had been virtually disabled.

Thus, they acted boldly to "form a more perfect union." They launched a sublime experiment in liberty never before surpassed, never again matched.

Sadly, not even in our own time. As P.J. O'Rourke has asserted, “There are twenty-seven specific complaints against the British Crown set forth in the Declaration of Independence. To modern ears they still sound reasonable. They still sound reasonable in large part, because so many of them can be leveled against the present federal government of the United States.”


Craig Pitman said...


I feel somewhat embarrassed to mention this because you are such an historian but its my understanding that Paine, especially "Common Sense" did not in fact have that much influence on the thought behind the Declaration because "Common Sense" wasn't even published until Feb of '76 and the Continental Congress had been already meeting for almost a year and much of the philosophical underpinnings of the revolution were already established. I believe it was John Adams who later said that "Vindiciae Contra Tyrannos" and "Lex Rex", already well-known works to the colonial thinkers (surely to Witherspoon at least) birthed the Revolution.

Am I mistaken?

Enjoy your blogs very much,

Craig Pitman

gileskirk said...

Actually, "Common Sense" was the compilation of ideas that Paine had been circulating for more than a year and a half--since his days of revolutionary propagandizing in the Lewes tavern, "The White Stag." So, the ideas already had wide circulation especially among the other Sussex men. But, in addition, it was after publication in America that the booklet sealed the commitment of the patriots to move forward with a bid for independence. Remember, no one even presented a resolution for a declaration of independence until June 1776. Even after the declaration was signed on July 4 and then made public on July 8, there was still a great deal of reluctance on their part. "Vindiciae Contra" and "Lex Rex" were essential philosophically, but it was "Common Sense" that tripped those last emotional wires.