Meditating on liberty

The rise of Trump and one-party dominance

WE DID NOT invent America – we inherited it. What are the core elements of our inheritance, and are they at risk in an era when many of the norms of political behavior we have come to expect have been cast aside?

In the aftermath of the November presidential election, in the wake of the mistrust and bad feelings nurtured and exacerbated by the tone and tenor of the campaign, and in recognition of the unprecedented fear and mistrust many have of the incoming administration, it seems right and necessary to reflect on our civic identity as Americans. What are the ideas and ideals that comprise our bedrock principles of governance? Are they durable and resilient in the face of a national leader whose rhetoric too often suggests authoritarian tendencies? Answering those questions requires understanding our founding documents – what they say and what they meant – and considering whether and how they have meaning, relevance, and vitality today.

This nation, founded upon a potent mixture of ideas and ideals, was crafted in the crucible of turbulent times, of a revolutionary spirit that, if given voice today, would surely come under scrutiny by the FBI and NSA. We are no longer revolutionaries, and haven’t been since 1787. When a revolution was commenced in 1861, it was called a rebellion because that was the descriptive Lincoln needed to support his ultimate position: that the union, once created, was permanent, and that no state retained sufficient sovereignty to depart from it. It may be wise to stop for a moment to reflect on how the idea of America was understood and articulated in the early years of the Republic, before the bloody battles of the Civil War gave us a hard fought “new birth of freedom.”

Lincoln himself referred to the Declaration of Independence as a “revolutionary document,” and indeed it was, particularly in its assertion that the people, faced with “a long train of abuses and usurpations,” have the “right” and “duty” to “throw off such Government, and to provide new Guards for their future security.” What was equally revolutionary, not in a belligerent sense but in a values sense, was the Declaration of Independence’s powerful statement that all men were created equal, and that each was endowed with unalienable rights of “Life, Liberty and the pursuit of Happiness.”

Those famously abstract ideals (“truths,” Lincoln called them) became the embodiment of the American idea. In the federal Constitution, the term “life” became “domestic tranquility,” “liberty” became “justice,” and the “pursuit of happiness” became the “general welfare.” These are the foundational ideas of America, what we base our identity on, what compelled a collection of men who were barely acquainted with one another to pledge their lives, fortunes, and sacred honor.

Of all these ideas, the notion of liberty is perhaps the most compelling as a cornerstone idea for the structure of the American nation. Liberty is freedom, but it is also the right, and ability, to make choices. A person who enjoys liberty thus enjoys opportunity and power. That person can choose freely to be in the political majority (and therefore participate in and develop the consensus among those who rule), or the political minority (and frame the arguments for opposition), or make no choice at all (which ironically is the use of one’s power to disenfranchise oneself).

Liberty is not an unbridled state of being. It cannot be in a civilized, stable society, and yet the very idea of placing constraints on liberty suggests repression that runs contrary to what we think about when we think about America. In the context of governance, liberty (in the words of Constitutional historian Mortimer Adler) “implies the absence of arbitrary restraint, not immunity from reasonable regulation and prohibition imposed in the interests of the community.” In this understanding of the term, the public interest trumps individual liberties – a seemingly innocuous but potentially dangerous interpretation in the hands of those whose idea of the public interest may not be yours, or worse, whose idea of how that public interest ought to be preserved may be through means and methods contrary to fundamental principles embodied in the Declaration of Independence, the Constitution, and its several Amendments.

What is liberty in the face of majority rule? The question has unusual potency and relevance several weeks before the executive and legislative branches of government will be under the control of one political party, with the judicial branch likely to follow suit in short order. Thomas Jefferson answered this question in his first inaugural address. Assuming the presidency during the nation’s first change of political control, Jefferson took pains to note the “sacred principle that if the will of the Majority is in all cases to prevail, that will to be rightful must be reasonable; that the Minority possess their equal rights, which equal laws must protect, and to violate would be oppressive.” In Jefferson’s view, liberty is assured when all citizens possess equal rights, protected and guaranteed by equal laws. This principle sounds simple, but when put into practice by people of differing viewpoints, it can lead to highly situational conclusions.

For many years before the Civil War, southern political leaders relied on the promise of liberty to support their rejection of any federal encroachment on slavery. John Calhoun said that he would prefer liberty more than union, and remarked: “No government based on the naked principle that the majority ought to govern ever preserved its liberty, even for a single generation. Those governments only, which provide checks, which limit and restrain within proper bounds the power of the majority, have had a prolonged existence.” The great rupture of the Civil War came when enough southern leaders came to believe that they could not effectively restrain unfettered rule from the majority North, and that the incoming Lincoln administration would undermine their liberties.

Lincoln, of course, famously described the nation as one “conceived in Liberty.” But liberty did not mean the freedom to secede. To the contrary, the union of the states was for Lincoln not an abstraction but a matter of “universal law,” logic, and principle. Ever the lawyer, Lincoln asserted in his first inaugural address that “perpetuity is implied, if not expressed, in the fundamental law of all national governments.” There was enormous tension between Lincoln’s view of the perpetuity of the union and his commitment to protect adherents to minority political views, but he reconciled this by combining practical and aspirational points of view: “If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other.”

Ultimately, said Lincoln, a “majority held in restraint by constitutional check and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.” Lincoln was never the threat that most southern leaders thought he was. Lincoln announced in his first inaugural address that he had “no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Tellingly, Lincoln issued the Emancipation Proclamation only as a wartime measure with effect only in states that were in rebellion. In that limited and extraordinary circumstance, he could justify a complete rejection of the views of the southern slave owner minority. Only in the aftermath of the war, with a victorious Union Congress in total power, did the 13th, 14th, and 15th Amendments finally and forever abolish slavery and establish the principle of equal protection under the laws.

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In this winter of political discontent, it may be useful, even palliative, to pause and reflect upon these expressions of the American idea. Are we satisfied that appropriate checks and balances are in place in the face of a highly polarized body politic? Can we rely upon the institutions of our national government to behave as Jefferson and Lincoln expected they would, or does the notion of protecting minority political forces through rigorous balance and equal laws become merely an unenforceable ideal in a time when reflection takes a back seat to reaction, when an emphatic tweet replaces the cogent expression of a moral and political viewpoint supported by the ideas and ideals that took a war to win and another to reaffirm? Of course the very idea of majority rule has been turned on its head by the outcome of the 2016 election, where the losing presidential candidate received over 2 million more votes than the winner of the Electoral College, and more votes were cast for candidates in the minority party of Congress, largely because the majority party benefits greatly from the artful drawing of congressional district lines.  Perhaps the system is rigged after all, but not in the way described by the Republican nominee.

Challenging times call upon everyone who loves and lives for liberty to learn, reflect, and consider the unique importance of the moment, and when necessary, act to ensure that the nation and the ideas that inform it “shall not perish from the earth.” Action in the 21st Century is not a call to arms, not an impulse to secede, but a call for steadfast adherence to principle, and the smart and strategic political action required to make those principles actionable. The Founders would expect nothing less.

James Aloisi is a former state secretary of transportation and a principal at the Pemberton Square Group.