When I was initially asked to speak, I asked if there was a subject you wanted to hear about. I was told “Oh, something about liberty.” As my older grandchildren might say, that seemed pretty specific—NOT.
When I thought about it, though, I decided that the subtext to the assignment was really something like: We read your columns in the Star, and we want to know where the hell you’re coming from. Which certainly seems fair enough. I get 500 words every two weeks to make my case on a given topic; that barely lets me outline an argument, let alone provide the context within which I’m operating.
I am definitely a person with a particular point of view (I know that comes as a huge surprise to those who read my columns…As my husband often says, “tell me what you REALLY think, Sheila”), and that point of view is grounded in my reading of the U.S. Constitution, the philosophy that animated it, and its assumptions about the essential nature and importance of individual liberty.
It is absolutely staggering how little the general public knows about our constitution and Bill of Rights. There are many reasons for that—we don’t do a very good job of teaching civics, or high school government, for one thing, and the media doesn’t do a very good job of covering or explaining constitutional arguments, for another.
I have been amazed, for example, how many of my undergraduate students cannot answer the very basic question “What is a constitution, and how do constitutions differ from statutes?”
As I try to explain to them, a constitution is a framework within which a government functions. It limits what government can do. Part of our constitution establishes mechanics and structure: assigning duties, determining who does what, establishing requirements for holding public office—that sort of thing. Some of it, however—especially the Bill of Rights—is a statement of our national values—our American moral code. The Constitution and Bill of Rights establish our national values, and our subsequent policy choices are constrained by those constitutional values, and are supposed to be consistent with them. (Village Pantry example.)
Original intent, properly understood, means fidelity to those original values. So, for example, James Madison/internet.
(Story about student who asked “Who’s J.M.?)
The men who drafted our constitution were products of the Enlightenment, the 18th century philosophical movement that ushered in great changes in the way people thought about government, science, and the nature of reality. One of the most significant consequences of Enlightenment philosophy was the elevation of the value of individual rights, understood as personal autonomy, or “self-rule.” The Founders wanted to limit the extent to which government can prescribe how we live, or interfere with our right to decide for ourselves what beliefs and goals make our lives meaningful. They were profoundly respectful of the integrity of the individual conscience. They wanted to protect each individual’s right to decide how to live his or her life; that’s why the Bill of Rights is a list of things government is forbidden to do—it sets limits on the power of government, even when that government is acting in accordance with majority desires—perhaps especially when it is.
The Founders were especially leery of what they called the “passions of the majority,” and as a result, the Bill of Rights is what lawyers and scholars call a “counter-majoritarian” document. It is a libertarian “brake” on the power of the majority to direct government action.
What critics often fail to recognize is that the Bill of Rights is less concerned with outcomes than processes; less concerned with what we decide than it is with who decides it and how. In our system, we decide for ourselves how to live, what to read, whether to pray and if so, to whom—and we get to make those decisions free of government interference or coercion, so long as we do not harm the person or property of a non-consenting other, and so long as we recognize and honor a similar right for our fellow-citizens.
Even when we are careful to define our terms, however, we really can’t understand the Bill of Rights without understanding American history. And if my students are any indication, our high schools aren’t doing any better at teaching American history than they are at teaching American government.
The Founders we all talk about, those we do learn about in American history, were the men who gave us the Declaration of Independence, the Constitution, and the Bill of Rights—the men who created our legal system. But there was another set of Founders: the Pilgrims and Puritans who originally populated the colonies, and the Founding Fathers who drafted the constitution. And those two sets of progenitors lived in very different conceptual universes.
The first set, the men that legal scholar Frank Lambert has called the Planting Fathers, came to the colonies for religious freedom, just as we learn in grade school. What we don’t learn is that religious freedom meant something rather different from the religious freedom most of us celebrate today. The Planting Father’s definition of religious liberty was “freedom to do the right thing.” (explain). Puritans like John Winthrop came to America to build a ‘Shining City on the Hill,’ a ‘new Israel.’
Religion was intensely important to those original settlers. Most of them believed that God not only wanted them to follow the “right way,” but that He also wanted them to make sure their neighbors were living in accordance with God’s rules as their particular church defined those rules. Most of them took for granted that government would impose religion on its citizens. Religious freedom meant a government that would establish the “correct” religion.
Not that there weren’t dissenters even then: the fiery Baptist preacher John Leland was one. Roger Williams was another ardent believer in freedom of conscience. He was expelled from the Massachusetts Bay Colony for his dissenting views, and went on to found Rhode Island, where he insisted that there be no religious test for citizenship. Williams was the first person we know of to use the term “A Wall of Separation between Church and State,” over 150 years before Thomas Jefferson would do so.
Those early colonists were products of the Protestant Reformation, the religious upheaval that began when Martin Luther pounded his 95 Theses on the church door. The Reformation brought about a new emphasis upon the individual. The Catholic Church had taught that people needed a “go-between” between themselves and God, and an interpreter to tell them what the bible meant; Luther, however, insisted that each man could approach God—and read the bible—without an intermediary. Over time, that bit of heresy ended up undermining the whole idea of authority—the idea that priests—and Kings—held those positions because God had chosen them, and that disobedience to the King and other civil authorities was therefore the same thing as disobedience to God.
The cultural influence of the Puritans, especially Calvinism, remains strong to this day. Calvin taught that God alone was sovereign, and that he had chosen certain people for salvation and others for damnation. Calvin also fashioned what has come to be called a “Presbyterian” model of church governance, in which individual congregations elected delegates to a presbytery, or governing body—a democratic organizational model that influenced later American attitudes toward the structures of authority. Calvinism in its various manifestations has been an important influence on American culture—and so has the Puritan view of liberty as the “freedom to do the right thing, and to make sure your neighbor does too.”
This is the way that one legal scholar has described the difference between these early Puritans, or “Planting Fathers” and the nation’s Founding Fathers:
“In 1639, a group of New England Puritans drafted a constitution affirming their faith in God and their intention to organize a Christian Nation. Delegates from the towns of Windsor, Hartford and Wetheresfield drew up the Fundamental Orders of Connecticut, which made clear that their government rested on divine authority and pursued godly purposes….
One hundred and fifty years later, George Washington took another oath, swearing to ‘faithfully execute the office of President of the United States,” and pledging to the best of his ability to “preserve, protect, and defend the Constitution of the United States.” The constitution that he swore to uphold was the work of another group of America’s progenitors, commonly known as the Founding Fathers, who in 1787 drafted a constitution for the new nation. But unlike the work of the Puritan Fathers, the federal constitution made no reference whatever to God or divine providence, citing as its sole authority ‘the people of the United States.’”
What had happened in that intervening 150 years was the philosophical movement called the Enlightenment. John Locke, John Stuart Mill, Montesquieu, and other Enlightenment figures had become particularly influential in the colonies. The Enlightenment introduced a new emphasis on rationality, ushered in modern science, and—most important for our purposes today—fashioned a very different definition of liberty: to these philosophers, liberty did not mean “freedom to do the right thing.” It meant freedom to do your own thing, freedom to choose your own ends and live your own life free of government interference, so long as you did not thereby harm anyone else.
I don’t think it is an exaggeration to say that American history has involved a continuing tension between the Puritan and enlightenment worldviews—and the very different concepts of liberty they represented. In my most recent book, God and Country: America in Red and Blue (only 16.45 on Amazon.com!!) I explored that history, and its relevance to our current public policy debates and the so-called “culture war.” Let me just share just one example I used in the book:
Some of you may remember the incident in 2003, when the federal courts ordered the removal of the five-ton granite Ten Commandments display that had been erected at the entrance to the Alabama Supreme Court by Judge Roy Moore. When the stone was being removed, supporters of Judge Moore rallying in front of the courthouse were interviewed by television reporters. Virtually all of them said that the removal of the monument was an infringement of their “religious freedom.” Not surprisingly, lawyers and civil libertarians found this claim ludicrous; what they saw was a theocrat attempting to use the authority of the state to impose a particular religious perspective at the expense of all others—the absolute antithesis of “religious freedom.”
What we need to understand is that neither side was pandering or lying. They looked at the same basic “facts”—a five-ton stone with a carved replica of the Ten Commandments, located at the entrance to the State Supreme Court, and a federal court order to remove it—but they interpreted what they saw in radically different ways. Both sides genuinely believed the other side was willfully ignoring “plain” truths: Moore’s supporters were angry that federal courts would not recognize the “fact” that the United States was a Christian Nation. Civil libertarians found Moore’s position incredible in the face of the First Amendment’s “clear” prohibition of religious establishments—a clarity which, needless to say, eluded Moore’s defenders. The two sides to this conflict might as well have lived on different planets, given their inability to communicate.
The constitutional constraints on government don’t just protect religious liberty, of course. The 4th Amendment requires government to have a good reason—an articulable reason, not just a hunch—for searching or seizing someone. Due process guarantees require certain procedures to be followed if government is interfering with your liberty or your property. The Equal Protection doctrine requires government to treat all similarly-situated citizens alike. We can discuss these and other specifics of the Bill of Rights during the Q and A, but one way to think about all of them is as pieces of an effort to level the playing field between relatively powerless individuals and the 500 pound gorilla that is government. (explain)
Clearly, I take sides in these debates. Here is my reasoning: the United States is the most diverse nation on earth. We are also one of the most religious and religiously diverse. If we are to live peacefully together, government cannot be allowed to play favorites. There are two arguments for preferring the vision of the Founding Fathers over that of the Planting Fathers: one is philosophical and the other is prudential.
Philosophically, I prefer what is sometimes called the “libertarian principle,” the principle that individuals should be able to live as they see fit, free of the interference of government, so long as they do not harm the persons or property of others. You might call it the “live and let live” principle. More authoritarian people will argue that certain private behaviors harm the whole community and that therefore the government should be able to prevent those behaviors. The difficulty is that there is no consensus on what behaviors those are.
Prudentially, there is a strong argument to be made that in a diverse country that is becoming increasingly more diverse, there is no practical alternative to state neutrality in matters of conscience. All over the world, countries are fracturing along ethnic and religious lines, as contending factions try to seize power and to privilege their own ethnic group or tribe. Whatever the merits or demerits of the Founding Fathers’ choices, I would argue that their insistence upon limiting the power of the state and subjecting elected officials to the rule of law has kept us from turning into Bosnia or Northern Ireland or more recently, Iraq.
As I have already noted, the Founding Fathers were products of the Enlightenment who understood that a government strong enough to protect a man’s property was a government strong enough to expropriate it. They were well aware that a government powerful enough to provide security would be a government powerful enough to threaten that same security. They understood that government needed sufficient authority to be effective, but they insisted on checks and balances to insure that its authority would not be abused. They knew that the legitimacy of government is dependent upon its adherence to constitutional limits and the rule of law.
I used to work for Bill Hudnut, when he was Mayor of Indianapolis—I was his Corporation Counsel, or City Attorney. I think his favorite analogy said it best: government should be the umpire, not one of the players. Or, as an ACLU friend of mine used to say, “Be careful before you empower the government to impose whatever rules the majority favors at any given time. Remember, poison gas is a great weapon, but only until the wind shifts.”
Our job as citizens is to protect liberty by keeping the poison gas out of the hands of the government.
Thank you.
