Strengthening Constitutional Self-Government

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Stop looking for a Golden Age

As a libertarian--or at least a fellow-traveler--I was pleased to see this piece by the Cato Institute's David Boaz.  The tendency to focus on all of the liberties we've lost in the past hundred years or so really can cause us to forget about the ways in which we are more free today than at any point in U.S. history.

There's been some negative reactions to the piece coming from, shall we say, predictable quarters.

UPDATE: Boaz responds to his critics, both friendly and unfriendly.  I particularly like this part:

I am a great admirer of the Founders, as I write on many occasions. When I talk about the progress we've made in expanding freedom for blacks, women, gays, and other once-excluded groups of people, I often say that we have "extended the promises of the Declaration of Independence -- life, liberty, and the pursuit of happiness -- to more and more people." I love and respect those promises, I appreciate the extent to which the Founders made good on them immediately, and I am glad that they have indeed been extended.

Why, if I didn't know better, I'd think he was a West Coast Straussian.  Or is that East Coast?  I can never keep them straight.

Categories > History

Discussions - 27 Comments

so....
American Founding:
free men---------------------------------women------------slave
America Today:
-----------------------------Us--------------------------------
as opposed to what should be:
Us--------------------------------------------------------------
or what is:
Goldman Sachs-----------------------------------Us-----
So we should enjoy the fact that we now are all less free than some were in the past because some unfortunate individuals had less freedom than we have now. There was no golden age, OK; instead of using that as a crutch to make things seem better than they are lets get off our lazy, inept behinds and realize that promise.

Nobody who knows David Boaz would claim that he wants us to stay on "our lazy, inept behinds." What we need to remember is that every time we yearn wistfully for the "good old days" we're sending a message--unintentional (I hope) but no less clear--that it's only liberty for white males that matters.

I think our Libertarian brethren miss something crucial here. To maximize the liberty of the INDIVIDUAL almost always requires the intervention of a huge, aggressive government. This is why Enlightenment thinking is often at cross-purposes with true conservativism. Conservatives understand that liberty is probably best at the organic group level (i.e., families, denominations, communities, regions, occupations). Will individual rights be violated in these organic groups? Most certainly, but it's almost never worth the price to guarantee the rights of atomized individuals -- you end up with a behemoth state and a degraded/tamed/trampled civil society.

This is why libertarianism and liberalism are just different versions of one another. The only real alternative is conservativism.

"To maximize the liberty of the INDIVIDUAL almost always requires the intervention of a huge, aggressive government"

My head just exploded.

I think you are confusing liberty with safety. There will always be thugs running about threatening the freedom of individuals but I trust in myself and general good that is in the majority of people rather than a leviathan of government to make sure the bullies don't infringe my "liberty." In other words, We can deal with thugs ourselves.

I understood that he was playing the race card or implying that we should use caution or else it would be played but I really thought the concept was so paranoid I skipped over it. I agree, we have never seen the golden age. With increased freedom for some has seen decreased freedom for others; we can't we all have the high level? Is freedom or liberty a limited good like gold or silver?

John, I mostly agree with you. There are lots of people out there who share conservative principles and policy preferences, but who will tend to have a different view of the past. An African American might not want social democracy, but it will be tough to win them over based on an interpretation of history in which the last hundred and forty five years have been defined by the steady loss of freedom to Big Government. That doesn't make wage and price controls right, just that the narrative of freedom is complicated and needs to better take into account the experiences of groups who aren't currently part of the conservative political coalition, but among whom we might hope to make gains.

"just that the narrative of freedom is complicated and needs to better take into account the experiences of groups who aren't currently part of the conservative political coalition, but among whom we might hope to make gains."

Pete, sorry, but "big tentism" has nearly been the death of the GOP. You can't be all things to all people and still stand for anything. The fact is, the forcible end of slavery set us on the path of big, interventionist government. That's a fact. It has been 145 years of the gradual erosion of liberty, typically in the name of individual freedom.

And Brutus, you want to think about things before you type them out. Patriarchs violate the "rights" of family members all the time, as do clergy and every other leader of organic groups. If they can't protect their own rights (and typically they can't), then GOVERNMENT has to do it. It's called "social control," and it's ubiquitous in human societies. It has been the vain search for equality that has lead us to this sorry state.

And before anyone supposes I'm defending slavery, I'm not. It's just that all other societies found peaceful ways to eradicate it. Why didn't we?

Because when individual property rights are a more important expression of liberty than "that all men are created equal" then no man has the right to tell another man that he can't own another man. "He is a man endowed with certain unalienable rights" carries less weight than "I have a right to my property and no one can take him from me". Rather than submit to the governmental "social control" you referred to above, B.P., the South sought to evade what peaceable eradication they thought was coming. The Government went all patriarchal on them and there was war.

BP, but the institution of slavery is dependent on big interventionist government. It takes a very active and intrusive state to enforce one man's ownership of another man - as runaway slaves, slaves who wanted to marry, and slaves who did not wanted to be parted from their children surely knew. We could all hope for a limited government and that one of those limits would be that the government could not declare some portion of the population and all of its descendents chattel. In that sense, the Thirteenth Amendment is one of the great limited government developments in American history.

I just don't get how you don't get that we can move in both pro and anti-freedom directions at the same time (though in different ways.) Or to put it another way, imagine if we could undo the New Deal regulatory and welfare states (not that I want that but anyway...), but that 60 million Americans would be enslaved (starting with BP and relations) by their fellow Americans with the full backing of the state. Would that be an uncomplicated narrative of freedom restored? Would you wait on peaceable, eventual freedom at whatever cst to yourself and those you love? Or would you remember American sentiments like give me liberty or give me death and seek to act on them as best you can even if it meant that by doing so, you might somewhat increase the chance of the passage of a future Agricultural Adjustment Act?

BP, I don't think you support slavery, but I don't think you are understanding what a radical violation of American freedom slavery and later Jim Crow white supremacy were and how that informs (but does not fully define) any understanding of freedom in the past.

"Pete, sorry, but "big tentism" has nearly been the death of the GOP. You can't be all things to all people and still stand for anything. The fact is, the forcible end of slavery set us on the path of big, interventionist government. That's a fact. It has been 145 years of the gradual erosion of liberty, typically in the name of individual freedom."

1) "Big-tentism" was the birth of the GOP. I quote Lincoln:

"Of strange, discordant, and even hostile elements, we gathered from the four winds, and formed and fought the battle through, under the constant hot fire of a disciplined, proud, and pampered enemy."
Springfield, Illinois, June 16, 1858

2) To say that the seed of an intervening government which has taken over industries was planted in the need to fight a civil war for the sake of the idea that all men are created equal is disingenuous.

It is ludicrous to lament the violent end of slavery in this country while exalting the system of government which would have made slavery permanent.

If there is any doubt, here is Alexander Stevens, from his "Cornerstone Speech":

But not to be tedious in enumerating the numerous changes for the better, allow me to allude to one other though last, not least. The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution African slavery as it exists amongst us the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the "rock upon which the old Union would split." He was right. What was conjecture with him, is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time. The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day. Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the "storm came and the wind blew."

Very pithy, Kate, but there is nothing "organic" about the American state, and so it can't go all "patriarchal." It was born from the crucible of the Enlightenment, and from the beginning was rooted in Locke's notion of compact. Strictly a contract between peoples, and nothing sacred about it -- despite all the attempts to drape it in myth and glory.

As for slavery, it was an evil, but there are a great many evils in this world. If we rely on interventionist government violence to solve them all, we end up with totalitarian hell-on-earth. You Ashbrook folks venerate Lincoln, but in doing so you spit on the true meaning of the American Revolution -- it was not about "equality" or "justice." It was an experiment to see if people can run their own affairs (as Lincoln noted in the Gettysburg Address!). The Civil War prevented the South from doing just that, and kicked off the American Empire. Good job, Abe!

Indeed, what Obama is doing could be viewed as a continuation of Lincoln's agenda -- to transform America towards a more equitable and rational society. Yes, I know, in your minds you make a great distinction between chattel slavery and "wage slavery," but it's a matter of degree, yes? And once you've admitted that the use of government violence to promote "equality" is fine and dandy, you have lost the argument.

BP, are you able to see the irony of demanding to "run their own affairs" in defense of slavery? The central problem with you argument (well one of them) is that slavery was deeply dependent on government violence and intrusive government rules. The government of the slaves states was using violence to promote the most radical kind of inequality. That is one reason why John Moser (and Boaz) was right to argue that the story of freedom lost is actually complicated. As for the uses of government to protect people's rights, one might consult the Founders, many of whom were Southern, and who (unlike the Southern political class of the 1860s) considered slavery to be a great evil.

It would be nice if the story of American republicanism were as simple as "letting people run their own affairs," but take Madison's point from Federalist 51:

"But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

"[the American state] was born from the crucible of the Enlightenment"

"Indeed, what Obama is doing could be viewed as a continuation of Lincoln's agenda -- to transform America towards a more equitable and rational society."

And you were expecting what, exactly, from something you claim to be born from the crucible of the Enlightenment?

Sorry -- above Anonymous comment was me

I see no contradiction. No group of self-governing people are sinless, and you can't point to any current state that truly lives up to its own rhetoric. Just so, citing flaws as an excuse for stopping a group of people from governing themselves is the road to tyranny -- surely you see that? I would remind you that the Federal Union denied true citizenship to women at the time, and allowed true misery to occur in its burgeoning industrial cities, and yet you are blind to these flaws, apparently. By what right did the North judge the South (and it was NOT by failing the contract, which had no provisions governing secession)?

Of course, you may argue that anarchy and hyper-fragmentation will occur if we allow any group of people to self-govern themselves, but all that is required is a clear contract stating the rules of secession. We STILL don't have this, and we need it, because the day is coming when the United States will fragment. There is absolutely no need for this future to be a bloody one (unless Abe Lincoln rises from the grave to whistle up his blue legions again).

Pardon my mixing/matching plurals/singulars in the comment above. Suppose I should proof-read!

Having read my own comment, I suppose some will say that I have no love for my country. Not true. I'm always been a patriot, but the country just doesn't stand for the same things anymore. Somewhere along the line the real purpose of our country was derailed.

Locke's notion of the social compact was something patriarchal. I was (briefly and simplistically) pointing to that; "organic" does not enter into it. However, I can agree that if we assume that there is no God to endow us with rights, then what man gives, man can take away. They are not natural then and what will we say to Locke?

Then, despite Locke, who only defends slavery when it is a product of war, how is there any rationale for slavery in a nation devoted to allowing people to govern themselves? A slave may not govern himself. The contradiction in the national character produced conflict, eventually. I know, Lincoln said so, too, so that must be a misguided notion, but he was not the only one who said it.

Ratification of the Constitution was not contractual?

i feel like I am writing in shorthand, but really have no time for development. Apologies for having interjected "pithily" in the first place. Pete & OoM, you are doing fine with the argument, please address what I am not.

BP, as to the role of secession as a constitutional and legal, rather than moral and revolutionary act, one might look to the words of the Father of the Constitution James Madison http://memory.loc.gov/cgi-bin/query/r?ammem/mjmtext:@field(DOCID+@lit(jm090163)) Madison made it clear that secession was a revolutionary and extralegal remedy for extreme constitutional and/or moral violations.

The rest of the stuff about self-governing communities is just rationalization, made all the more grotesque for the language of self-determination being used in defense of slavery. Are you alone in not seeing the irony in using the phrase "stopping a group of people from governing themselves is the road to tyranny" as a criticism of Lincoln rather than the Confederacy?

And to address one of your other points - why the abolition of slavery in the US was not peaceful. The project of the Confederacy might be seen as an attempt to prevent the gradual, democratic and (very, very) slow extinction of slavery within the Union, a choice to dismember the US and use war to protect not merely the existence of slavery, but to make the institution as impregnable as possible within a smaller nation that would be defined by its larger percentage of slaves and its dedication to racial slavery. And the war came.

One might very well argue that hyper fragmentation might be a problem, which was why the Confederates were not high on self-determination for West Virginia and East Tennessee - to say nothing of the slaves. The bad faith use of the language of self-determination in defense of tyranny could hardly be more complete.

What distortions! First, I couldn't care less what Madison said. The issue isn't a matter of opinion. There is no language in our Constitution about the perpetual nature of the contract. The South had the right to leave the Union, and Lincoln violated their rights with violence.

The South did not "use war....to protect...slavery." What nonsense. It was Lincoln who refused to give up Southern territory, it was Lincoln who called up troops (thereby forcing the border States to pick a side), and it was ultimately Lincoln who entered into a war of aggression. Why do you think that 90% of the war was fought on Southern soil?

And his was generally not a popular war. Indeed, thinking that he couldn't even win the election of 1864 in the North, Lincoln unleashed his hound, Sherman, on the women and children of the deep South. Yea, heroes indeed. And then Reconstruction, which essentially enslaved the whole region for a hundred years.

I'm glad slavery is gone, but I don't think we live in a better country as a result. The price in blood and governance was simply too high.

BP, if one were interested in understanding what kind of government the US got under the Constitution, rather than merely repeating the overconfident and self-serving assertions of Calhounites and radical New England Federalists, Madison would be exactly the kind of person whose very informed opinion one would be interested in. Or one could just not care and recycle Confederate apologias that were stale when Grover Cleveland was in his first presidential term.

So disposing of the legal right to secession, one is left with the revolutionary and moral right of revolutionary secession. There are perhaps times when such a secession might be justified. Men like Madison, Andrew Jackson and Abraham Lincoln were all very eloquent about when such secessions might be justified. But as it was, the Confederacy was an extraconstitutional attempt to dismember the US in order to create a new, smaller polity that would not be subject to the pressures for very gradual, peaceful and democratic abolition of slavery that were manifesting in the broader US (this is not to describe the motivations of every Confederate private). It was in that sense a revolution in defense of a bad cause - the permanence of slavery - a cause and a revolution they would use violence to defend when the federal government sought to enforce the federal Constitution.

And are you able to see the many ironies in describing that Reconstruction "enslaved" the South when unmetaphorical slavery actually existed just previously and how fraud and terror would set up a radically white supremacist government in the states of the region that prevented African Americans from exercising their rights as citizens (I do not write primarily of laws keeping people apart by race). I'm all up for a good argument on secession, but the Redemption-era mythology is shameful.

As for the price of ending slavery. Well the price was so high (and the end of slavery came so quickly) because of the truculence and errors of slavery's most fanatical defenders, but when examining the "price" of ending slavery, one might look at the price the Founders were willing to pay to end taxation without representation, never mind the much greater violation of rights represented by chattel slavery.

And another thing. When we talk of the "price in blood" of ending slavery, I think it mostly means the price paid by mostly (but not wholly) white soldiers on both sides of the civil war. If slavery had ended far more slowly (say over the next eighty or so years) the "price" would still have been paid, though not in the deaths of white men but in the lifetimes of lost freedom for millions and millions of slaves.

Well, if it is the defenders of the status quo who always decide whether an act of secession/revolution is "justified" or not, then I would say that secession/revolution rarely gets the "OK." Your formulation is laughable, I'm afraid.

As for the "price" in lost freedom, you need to read "Time on the Cross." Southern slavery was a mild institution when compared to other New World institutions, and in terms of raw welfare they were at least as well off as the typical immigrant in New York City or Chicago. The value of "freedom" is unquantifiable, but I've often wondered what a direct comparison of relative welfare between whites and blacks would show then and now.

And I think you are mistaken about the speed with which slavery would have died (this is an old, old argument, of course). The fact that slaves would easily have escaped to the Northern Union suggests that the institution would have crumbled even had the Confederacy been successful in its bid for independence. Also, world pressure to abolish it was growing, and the CSA would not have been immune to that. How long before England/Europe would have stopped trading with the CSA over slavery?

No, it was clearly a doomed institution (forget about what cotton does to the soil, or mechanization). But I for one think the Southerners had a lot more on their minds that keeping their slaves. That was certainly true for the 80% of Southerners who didn't own any!

BP, well I wouldn't call it my formulation as I am just sharing the views on revolutionary secession of Jefferson (as expressed in the Declaration), Madison (as in above), Andrew Jackson (in his proclamation of nullification) and of course Lincoln, who, in this matter, stood on the shoulders of giants in resisting secession in defense of slavery.

Surely when describing slavery as "mild " and the value of lost freedom through chattel slavery as unquantifiable (which is true, but not I fear in the sense you seem to intend), then any complaint about the loss of freedom to taxation, economic, environmental, and labor regulation becomes grotesque and absurd. I suspect that if it were you and yours who were prevented from marrying, could be raped without legal recourse (in later American slavery, not so much the 1700s), could have your family broken up at the owners profit, and have it be a crime for your children to learn to read, you would not find things so mild - and neither would the Northern immigrants that slavery apologists tend to be so solicitous of.

As for how long slavery would have lasted? Who knows? the Confederacy was an attempt to render slavery politically impregnable within a polity in which slavery would be a (if not the) central economic institution and in which slavery would be sacralized (as in the Cornerstone speech) in public rhetoric as the basis for social life. We can know that the confederate project, through its defeat, had the unintended effect of ending slavery in the US both quickly and violently, but how slavery would have survived and evolved within a militarily and politically triumphant Confederacy is impossible to say with confidence. The experience of 20th century racialist (and other) tyranny, and the morale boost the institution of slavery would have gotten through either a military or political victory would have strengthened slavery in ways that make confident claims of slavery's quick extinction questionable at best.

Yes, I'm well aware of the horrors of slavery, but it beats death (which was the typical lot of Caribbean slaves). I do encourage you to read more about Southern slavery. While all the things you mentioned happened at one time or another, they were far less common that some have suggested. There was a human face to the institution, although I would argue that it corrupts and stains the soul of both master and slave (just as running a factory at bare-subsistence wages stains all parties involved). Domination of any kind has nasty repercussions.

As for the evolution and final demise of slavery, it is truly counterfactual history, granted. Nonetheless, I think anyone who knows the economics of the situation plus the prevailing Zeitgeist of the late 1800s would conclude that it was a doomed institution. I guess we'll just have to agree to disagree on this one.

BP, I don't doubt that slavery in Virginia was less horrible than French-enforced slavery in Haiti, and as you note, one doesn't have to believe that slave owners were generally cartoonish sadists to believe that slavery was a monstrous institution - though I'll note that slaves who went to the industrialized North did not pine for the days of slavery nor did Northern immigrants seem to envy the condition of the slaves.

I just don't think that the intrinsic evil of the institution of slavery can be measured fairly by comparing it to some other, even more horrible situation. I think, in the context of American values regarding the rights of the person, the evil of the violation of individual rights in slavery is better measured against those much smaller and milder violations of personal rights that led the Founders to revolt. The founders would not have been mollified to be told that taxation without representation was mild by global standards, that they were better off than French peasants in Lyon (nevermind French slaves in Haiti) and that English imperialism had a human face.

As for the tide of popular opinion in the late 1800s. Well a Confederate victory (whether political or military) would certainly have had some influence on the tide of global opinion, and later events indicate that pro-freedom movements were more fragile than might have appeared in the aftermath of the US victory in the Civil War. Mass movements for even totalitarianism were just around the corner. This isn't a prediction of anything , just saying that in the counterfactual we are discussing, I don't have confidence in any particular prediction.

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