by Glenn Elmers
“[The Declaration of Independence] was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple — not the apple for the picture.”—Abraham Lincoln, “Fragment on the Constitution and Union”
The crisis of our time requires clear thinking about political means and ends, and the ways they are connected. The two epigraphs above address this central question of practical wisdom—the first from the general perspective of theory, the second as relates to the particular nation of the United States. Both quotations may be familiar to educated conservatives, and particularly to those students of political philosophy broadly associated with the Claremont school of thought. Yet there is a danger that such familiarity may breed, if not contempt, then the forgetfulness that settles on “sonorous phrases” which lapse into clichés. I would like to reconsider these arguments made by Aristotle and Lincoln—along with some related observations by James Madison and Thomas Jefferson—not as hackneyed commonplaces but as genuine insights that remain relevant and even urgent. Circumstances in the coming years may require new or unusual means to secure the ends of liberty and justice. Our thinking must be appropriately radical.
To assist this inquiry, I turn to the late professor of political philosophy Harry Jaffa, who saw with unsurpassed insight the connections between Aristotle, Lincoln, and the founders. Jaffa was perhaps the foremost discoverer and defender of Abraham Lincoln’s philosophic statesmanship. At the heart of that statesmanship was the preservation of the Union. Because the constitutionalism which established and secured the Union represented, in principle, the best regime achievable in the modern age, Jaffa saw the founding of the United States as a world-historical event, with theological dimensions. In Lincoln’s mind, Jaffa wrote,
the idea of a popular government that unites liberty and order, the idea of the Union, and the idea of rule by free elections are one and the same. Their inner unity may be said to resemble the Trinity, the three persons of God in Christian doctrine.
To see America in such grandiose terms is not an act of glorification, still less simplification. On the contrary, the metaphysical dimension of the United States helps to reveal the great complexities and challenges of the American experiment in liberty. Thus, “it is important,” Jaffa adds, “as in the case of Christianity, to understand the reasons for the distinctions within that threefold unity.” [emphasis added]
For much of American history (and in much of Jaffa’s own scholarship), the emphasis has been on the harmony or interdependence of these ideas: ordered liberty, Union, and free elections. Jaffa is perhaps most famous for his broad and unyielding defense of Lincoln as the true heir of Jefferson—which includes the contention that there is no constitutional right of secession, that the Declaration confirmed the American people as one sovereign nation, and that the Constitution instituted the perpetual Union of this people. While all this can be (and is) true, the picture is not quite as complete as it may first appear. “Nothing in the Declaration of Independence,” Jaffa once wrote, “notwithstanding its nobility, justified the assumption that the laws of nature and of nature’s God may not result in genuine dilemmas.” Only if “men had become perfectly enlightened,” he added, could we suppose that the United States—or any political regime—had resolved all dilemmas.
I would like to explore, then, why it may be more important now to understand the distinctions mentioned above. Under what conditions, and with what effect, might we see these elements of liberty, Union, and free elections coming apart? The mystery of Christianity’s triune God may be ineffable and beyond human understanding; but in any human community, there must be a rational balance between the whole and the parts, between centripetal and centrifugal forces. What happens when this balance is overturned?
Compound or Complex Unity
Begin with the Declaration of Independence, which Jefferson and James Madison described as “the fundamental act of Union” of the United States. As the principal author of that document, Jefferson explained that it
was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed, in conversations in letters, printed essays or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.
The first of these “elementary books of public right”—Aristotle’s Politics—was not only a principal source for Jefferson’s philosophy of government, but according to him, expressed the harmonizing sentiments of the American mind. What does that book have to tell us about the questions that concern us?
Two observations by Aristotle particularly command our attention: one is about the purpose or end of political life, and the other on the nature and limits of political unity.
In an entry he wrote for the International Encyclopedia of Social Science, Jaffa explains that for Aristotle, the political community “is the comprehensive form of human association, and its purposes ascend from the necessary conditions of human existence,” to the higher end of “formation of good character in the citizens….” This means that a healthy political order, or regime (in classical terminology), is not merely a collection of atomized individuals pursuing their animal needs, but a true partnership in pursuit of the good life. The good life, the end of all human activity—as Aristotle explains in his Nicomachean Ethics—is happiness. To secure the conditions for happiness, and pursue this partnership for the common good, civic friendship is essential. Jaffa explains that friendship, for Aristotle, “seems to hold political communities together more than does justice, and legislators seem to care for it more than for justice.”
In the United States, this pursuit of the good life is modified somewhat from what Aristotle proposes. The founders’ guarantees for religious liberty meant that—unlike the theocratic cities of the ancient world—our government would not attempt to perfect men’s souls directly. This did not, however, imply that the American regime would be indifferent to the moral virtue of the citizens. Indeed, all the founders agreed that self-government is only possible when men and women first exercise the good habits necessary to govern themselves. This is necessary before they can participate in political rule. Despite some important differences between ancient and modern politics, we see in the Declaration’s reference to happiness (as well as the ringing conclusion about “sacred honor”) Jefferson’s harmony with Aristotle about the primacy of the noble and good in human life.
These arguments suggest that our regime is just and worth defending to the degree that it promotes the conditions for human happiness. Aristotle’s Politics argues that when civic institutions and relationships break down, becoming an impediment to the pursuit of virtue and happiness, the regime ceases to perform its proper function and loses the support of its best citizens.
If the first lesson from the Politics concerns the goal of political life, the second points to the form or structure of the political community. There is an important sense—from Aristotle’s point of view—in which the United States today needs less, not more, “unity.” We ought to have both unanimity, or at least broad agreement, on the principles of the regime—namely, that government is limited to protecting our equal, natural rights—as well as what The Federalist calls “a multiplicity of interests.” A modern society with a modern economy needs and benefits from geographic, occupational, religious, and commercial diversity; no single interest group should have too much power. This balance between homogeneity and heterogeneity, however, has become inverted today. Everyone is now encouraged to believe in his or her own truth, while at the same time a centralized and suffocating factional interest seems to control all major institutions, in and out of government. Rejecting rational or revealed truth (grounded in either nature or the Bible) does not of course preclude an official ideology—which may reject the idea of truth yet command an allegiance enforced with the strictest severity. A similar inversion may occur when a color-blind society of multiple interests is replaced by a monolithic oligarchy obsessed with racial and ethnic differences.
A political community, Aristotle argues, aims at the highest good—happiness—and is thus the most comprehensive human association. Yet it must not destroy the subordinate, natural communities that are vital to that happiness. Above all, the political regime depends on (and certainly does not replace) the family. A political community, therefore, is properly understood as a compound, or complex unity. One of the great theoretical errors Aristotle argues against is to treat political life as all-encompassing—to make the regime “too much of a unity.” Rational reflection can discern that man has a fixed nature and proper end, but also that there are a multiplicity of other good things, which may vary for different human types, and may also differ according to circumstance. Therefore, not only families, but also a variety of private associations, neighborhoods, and many other smaller communities are essential. The whole must not overwhelm, and thus destroy, the parts. The common good requires both. Put into somewhat abstract philosophical terms, Jaffa explains that “Aristotle will not sacrifice heterogeneity to homogeneity, nor homogeneity to heterogeneity.”
Both of these points—about the ends of the regime and its proper form—are captured by a remark Aristotle makes in Book III of the Politics:
It is clear then that those constitutions that aim at the common advantage are rightly framed according to the just simply; while those that aim at the advantage of the rulers are deviations and departures from right constitutions. They are despotic, while a polis is a community of free men. [Translation by Jaffa.]
This philosophical background is necessary to help us understand what Jaffa called the dilemmas of American politics.
What, then, of the second epigraph quoted above?
Lincoln says that the Declaration does not exist for the sake of the Constitution. Rather, the purpose of the Constitution is to advance the Declaration’s principles of liberty and equality. (This too is an Aristotelian idea: the institutions or “offices” of every regime serve its arche—its central idea.) Many present-day conservatives suppose that this is a mere redundancy: of course the Constitution serves the goal of protecting individual natural rights. As Jaffa shows, however, we are mistaken to make such an assumption. American history has been defined since the beginning by near-constant struggles over the correct meaning or interpretation of the Constitution, as well as intense partisan debates about loyalty to (or betrayal of) the Spirit of ‘76.
Beyond the institutions and offices of the Constitution, and underlying principles of the Declaration, there is yet a deeper layer to the American political tradition—which is hinted at by Aristotle’s discussion of the nature of the political community. Before there can be institutions, or even purposes, for a government, there must be “a people” who form themselves into a political community. The American founders addressed this question through the theory of the social compact.
These abstract matters may seem far removed from the urgency of our current political situation. But a prudent solution to our present crisis will not be found without a clear understanding of both ends and means. What Jaffa has to teach us about all this is surprisingly timely and relevant to our present concerns. And these lessons, I think, will prove instructive even for those who feel a great urgency to take immediate action. “If,” as Lincoln said, “we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it.”
To what degree, if at all, does the American regime still aim at being a partnership for achieving happiness, or the good life, and what might be done to refocus our political community to that end?
Today, the federal government—with the blessing of the Supreme Court—routinely flouts nearly every aspect of the founders’ Constitution. Judged only from this perspective, America is in bad shape indeed. We are unlikely to see a complete return to the original institutions and practices the framers established in 1787. A century or more of progressive education and political reforms have disfigured their ingenious handiwork almost beyond recognition. It may still be possible, however, to restore or sustain to some degree the Constitution’s underlying principles. Assuming such a recovery is still possible, success will depend mostly on state and local governments.
How would it work?
Recent news reports indicate that the attorney generals of several states are discussing potential lawsuits to challenge federal overreach by the new administration inaugurated in January 2021. Certainly, the Supreme Court has a role to play in such disputes. But one baleful consequence of progressive propaganda is that many Americans now simply assume that the courts are the ultimate arbiters of all such questions. Madison and the other founders, however, made a crucial distinction between legal controversies—over which judges and courts have final authority—and political disputes, which by their nature can and should be worked out by the elected officers of the state and national governments.
The very idea of such a distinction seems alien to our 21st-century sensibilities. The Constitution is law, and law is the purview of lawyers. Moreover, if the government is pursuing policies objectionable to the people, the solution is simply to replace such unfaithful stewards of the Constitutions, at the next election, with better representatives of the popular will. That at least is the common understanding today. But this is not quite how the founders viewed the matter.
We suppose today that the letter of the Constitution was always meant to be authoritative for all questions, and to serve as the highest authority to which any political question could be appealed. Conservatives who defend this premise, and liberals who acknowledge but reject it, are both mistaken. As strange as it may seem, the recognition of an authority higher than the positive law of the Constitution offers what is probably the only hope of recovering the limited self-government America used to embody. It is in this light that we must understand the role of the courts, elections, federalism, and even constitutionalism itself.
One of the paradoxes of the Constitution is that it invites—and in a sense, requires—disputes over its meaning. One strong proof of this, though not the only one, is that the original Constitution was a “bundle of compromises”—a famous description once known (long ago) to every schoolboy. This fact, among others, means that there can be loyal constitutional resistance to the authority of the Constitution. This is easy to misunderstand, so let us be clear about what this means. It does not quite mean that dissent is the highest form of patriotism—although that sentiment, difficult as it may be for some conservatives to accept, is not wholly wrong. Jaffa reminds us that the typical way for the constitutionality of a law to be challenged in court is for someone to violate it. The way he expresses this point seems surprisingly radical:
Anyone who is convinced that a given measure is not in pursuance of the Constitution is authorized by that fact to think that the measure is not a law and that he is not bound to obey it. Whether it is prudent for him to act on this opinion depends upon circumstances. If he is alone in this opinion, or nearly alone, he can do little until he persuades others to join him. But it is important to understand that civil disobedience or disobedience to a law that one does not believe has been passed in pursuance of the Constitution, cannot of itself be regarded as disloyalty to the Constitution. This is all the more true because the Constitution itself does not say how one can discover when a law is in pursuance of it. Much of American history is the tale of attempts, by one means or another, to resolve controversies as to what is in pursuance of the Constitution.
This does not mean that the Constitution is without objective meaning or authority, of course. Nor does it mean that every citizen is his own Justice of the Supreme Court. Civil disobedience, properly understood, includes accepting the punishment the law stipulates. And even if one is successful in getting a constitutional case to court, one might still lose. Therefore, it is not primarily individuals but the different levels and branches of the government—where powers are divided—which play the primary role in settling constitutional questions. Here, the states have an important role to play. Examining the profound debates the founders had about the relationship between the states and the federal government is surprisingly instructive for our own circumstances. Of particular relevance is the controversy over the 1798 Alien and Sedition Acts, and the responses by Jefferson and Madison. I encourage the reader to study these matters independently, since I can only touch on a few points.
Who is Sovereign?
First, we must confront a grave difficulty. Every discussion of state sovereignty since the 1830s has been irredeemably tainted by the issues of slavery and civil rights. While it is important to be mindful of the controversial history of this question, we also need to bear in mind that there are many sound and important arguments regarding federalism that have nothing to do with race. Moreover, it is precisely the sensitivity of this topic that highlights the crucial distinction between states asserting their authority to support equal natural rights versus denying them.
Jaffa explains in a compact paragraph, how we should approach this topic:
If we understand the Kentucky and Virginia Resolutions as Jefferson and Madison understood them at the time, the defense of state rights and the defense of civil liberty formed part of a single argument. Looked at in the light of nearly two centuries, however, they stand at the headwaters of two divergent trends in American political and constitutional history. The defense of state rights against “numerical majoritarianism” and the “tyranny of the majority” became in time a defense of slavery and, after that, of Jim Crow…. For Jefferson and Madison, however, the rights of the states, as of all legitimate civil societies, were grounded in the natural rights of individuals, as proclaimed in the Declaration of Independence and the bills of rights of the states. The rights of the states and the condemnation of slavery were part of the same doctrine.
“To understand the election of 1800,” (in which Jefferson’s Republican party ousted Adams’ Federalist party) Jaffa points out that “we must not read back into it the opposition between state rights and civil liberties” that led to the Civil War.
That’s a lot to unpack. Let me clarify a few items.
First, the framers’ whole concept of an extended, representative, commercial republic was an innovation—part of their improved political science. They believed that dividing and mixing governmental authority was a shrewd way to keep tyranny in check. But it did so by opening the door to endless wrangling and disputations. Federalism in the American context meant more than what had previously been understood by “federation,” and was thus a knotty issue from the beginning. Jaffa notes that the arrangement created by the Constitution,
by being “partly federal and partly national,” as Madison says in the Federalist No. 39, corresponded to no prior theoretical understanding of what either the federal or the national was. It is not surprising that in controversies concerning the nature of the regime, the partisans should choose between its federalism and its nationalism, and interpret the one in light of the other…. To call the Constitution of the United States partly national, and partly federal was very much like saying that in the new Union, the states were neither maids nor matrons, but that their status was nevertheless legitimate. Clearly there was a new and imperfectly understood “family” relationship in this Union. The rights of the respective parties were far from settled by the founding fathers….
Even before the controversies of the Adams administration, Madison anticipated that an overbearing national government might need to be kept in check by popular resistance, either directly by the people en masse, or through the states. In Federalist 46 he writes that “ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only.” Rather, overreach by Washington, D.C. would ignite “signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.”
Madison was clearly wrong about the states standing up for their own jurisdictional authority, not to mention the reserved rights of their people. The gradual weakening of the states’ leverage over the federal government (though the direct election of senators in the 17th Amendment, for example) has generally taken place not over their objections, but with the active cooperation of state governments.
More surprising (to us) is how Madison sees the tension in what we might call revolutionary terms. As Jaffa explains, Madison’s argument is
remarkable for seeing the hypothetical conflict between the federal government and the states under the Constitution as not different in kind from the recent “contest with Great Britain.” Although Madison denies any probability of such a conflict, he anticipates the Jefferson of the Kentucky Resolutions in seeing potential usurpations by constitutionally elected officials to be as dangerous to liberty as the usurpations of the British Crown and Parliament…. And he assumes the same unanimity of the people in resisting the “ambitious encroachments” of their own representatives that Jefferson attributed to “all American whigs” during the Revolution. In the extraordinary means of resistance described in Federalist 46, the role of free elections in deciding political-constitutional differences, to which Lincoln would appeal in 1861, is not visible.
As mentioned above, we tend to see judicial review as the sole means of keeping the government faithful to the Constitution, and elections as the singular guarantee of the people’s liberty. The framers were less naïve, or perhaps more cynical. They anticipated, and engaged in, much more raucous and turbulent political fights than what we became accustomed to in the 20th century. (Those who think the political divisions of the last few election cycles are uniquely acrimonious have little sense of American history.) From the founders’ perspective, most Americans today have become pathetically meek and passive. And state and local governments—the representatives closest to the people who were intended to be the strongest guardians of individual rights—don’t yet seem willing to offer more than token opposition to unconstitutional encroachments by the federal authorities.
Could this change?
Pushing Back on Encroaching Federal Authority
For governments at the state (and to some degree, local) level to find the courage to act, their officials must be shown a compelling case for both the legitimacy and urgency of counterbalancing action. Then there is the small matter of what they would do. This last point may seem like the most important. I’m not sure it is. In any event, the precise contours of what specific activities they might undertake are 1) outside my expertise, 2) would vary from state to state, and 3) depend on the prudent appraisal of circumstances best left to the state officials themselves. Madison himself, in the Virginia Resolution, and the later Report of 1800, was more nuanced and less radical than Jefferson (not surprisingly), and also somewhat vague about what “interposition” against federal overreach would entail. In the end, both the Kentucky and Virginia resolutions went no further than calling for public debate on the issue, and encouraging the Adams administration to remain within the constitutional limits of its powers. We should bear in mind, however, that the federal intrusions that so agitated Madison and Jefferson were extraordinarily mild—almost nothing, really—compared to our current situation.
Because the muscular federalism imagined by the founders has become so badly atrophied, it is crucial to understand first and foremost what can justify decisive action by the states. Again, Jaffa, the great Lincoln defender, supplies surprisingly strong support for this position—a fact that becomes less surprising once we appreciate that states can protect, not merely reject, the principles of the Declaration. “An elected government,” Jaffa writes, “has no more moral or legal right to arrogate authority or employ powers not delegated to it by the people through the constitution than a nonelected government.” In fact, he adds, when “a freely elected government usurps authority, it too may by this fact invite resistance.” What exactly does that mean?
Recall the speculation at the beginning of this essay about whether ordered liberty, free elections, and Union are losing their interdependence. Jaffa elaborates on this point eloquently in his book, A New Birth of Freedom (2000). His observations deserve to be quoted at length:
That the powers usurped by an elected legislature should be resisted in and by the electoral process—that is to say, by “throwing the rascals out” in the next election—may be the mode that now appears most desirable and most compatible with republican principles. But that depends upon the circumstance that neither side in a contest believes, or has reason to believe, that its political opponents intend to use the power of government, gained by election, to deprive it of its equal natural rights. Indeed, no one can accept as a fellow citizen anyone who does not see the process of voting as a means to implement the equal rights of everyone. Before the votes are counted, it must be understood that the winner represents those who voted against him no less than those who voted for him. Above all, the president of the United States, the commander in chief of the armed forces, who has the ultimate responsibility for the security of the entire nation, is the representative of every citizen. If such an understanding does not prevail, as it obviously did not in 1860, then the political process envisaged by the Declaration of Independence and the Constitution cannot function…
The Kentucky and Virginia Resolutions, by their contribution to the electoral victory of the Republicans in 1800, contributed to the unprecedented world-historical event we noted at the outset: the peaceful and nonpunitive replacement in the offices of government of one party by its bitterest political rivals, on the basis of a free decision by a whole people at the ballot box. Likewise, as we have noted, both judicial review and civil disobedience have been, at one time or another, elements in the electoral process, since they have been means of focusing the attention of voters upon the issues to be decided. But once one concedes that even a lawfully elected government may govern unconstitutionally, one must concede that free elections, in and of themselves, do not confer final legitimacy.
The alarm raised by Jefferson and Madison in 1798, calling on the states to assert their constitutional stature and authority, was prompted by the recognition that elections alone cannot provide a sufficient guarantee for the protection of rights and the pursuit of good government. The states, no less than the federal government, exist as political entities solely by the authority of the people. Each part of the framers’ political system is duty-bound to exercise its constitutional responsibilities, especially when a different element seems to be malfunctioning. Obviously, in all matters of national importance, the national government must be supreme. Yet, as Jaffa pointed out, both the federal and state government have an “identical foundation in the sovereignty of the people,” and in that respect are only distinguished “by their different jurisdictions.” There is nothing inappropriate in the states affirming their powers, especially in matters where it is their particular jurisdiction (over nearly all matters of “health, safety, and welfare”) that may be at issue. What is inappropriate, indeed inexcusable, is the failure to act if indeed elections at the federal level are proving inadequate to secure the common good. “The purpose of majority rule is to protect the equal rights of all,” Jaffa explained. “Whenever that proposition is not credible, free or constitutional government—government based on compact—breaks down.”
Well, those are some powerful statements. What is not yet entirely clear is whether or how they in fact apply to our situation today. To understand that, we need to get behind the idea of free elections and see what makes them possible in the first place.
The Limits of Sovereignty
In addition to his interests in American political thought, Jaffa was a great student of Shakespeare. In a book he wrote on original intent jurisprudence, he addresses the question of whether government can simply declare by fiat that human wants and desires shall be fulfilled through some sort of mystical dispensation. To make his point he quotes a passage from Shakespeare’s Henry IV, Part I:
Glendower. I can call spirits from the vasty deep.
Hotspur. Why, so can I, or so can any man; But will they come when you do call for them?
Jaffa points out that judges or politicians or political parties, “decreeing that the people shall be supplied with cabbages or doctorates, are like Owen Glendower calling spirits from the vasty deep.”
This vignette pokes fun, but in fact raises a very serious issue. A regime that operates on the belief that nutritious cabbages (or healthcare) and prestigious doctorates (or college tuition) can simply be made “free” to all is radically, even diametrically, opposed to the regime envisioned by the Declaration of Independence—which, despite its lofty rhetoric and noble sentiments, is an eminently practical document.
As an expression of what Jefferson called “the American mind” the Declaration does not represent a detailed plan of government, but it is still a fairly concrete statement on the nature, limits, and purposes of political life. In particular, the Declaration is emphatically anti-utopian. To cite only a few examples of its metaphysical and political realism, note the recognition of tyranny as a permanent threat to liberty; the existence of “savages” and “barbarians” as more or less permanent features of the human condition; the need for prudence to weigh risks and rewards; and the contingency of all human endeavors, which may depend for their success on “divine providence.” Notwithstanding these modest appraisals of man’s non-angelic nature, the Declaration is hopeful that humans are capable of rational deliberation and affirms that statesmanship can (at times) secure the conditions of life, liberty, and the pursuit of happiness.
Broadly conceived, these are the doctrines or opinions of what Jefferson described as “American Whigs.” And, notably, the republican government conceived by the founders was intended to be suitable only for American Whigs. This is not such an easy idea to grasp, especially in light of the discussion above, about the American political system inviting constant disputes over the meaning of the Constitution.
One the one hand, most of our great policy controversies have expressed themselves as arguments over the meaning of the regime. But for precisely this reason, they are always bound within a certain conception of what makes free elections and rational debate possible in the first place. Jaffa argues that from Jefferson’s perspective, only those who accepted the principles of the Declaration “could be considered part of the political universe with respect to which majority rule would be possible.”
This means that had a plebiscite on independence been possible in 1776, Whigs would (if they could) have excluded Tories from the vote! What constituted an “American Whig” was accordingly defined by the statement of principles in the Declaration of Independence, most notably by the passage beginning, “We hold these truths to be self-evident.” We may therefore say that from the perspective of the Revolution, a free election can be conducted only among “Whigs”! And the acceptance of the idea of human equality, as that idea was comprehended within “the laws of nature and of nature’s God,” would appear to be the necessary condition par excellence for defining who might participate in a free election, and hence who might be expected peacefully to abide by its results.
This point is essential to understanding properly why elections, by themselves, cannot be regarded as the sufficient guarantee of republican government. Not only can tyranny arise from a majority vote, but the principles that make self-government possible cannot be decided by a poll. Jaffa points out that one cannot “imagine the issue that divided the Americans and the British Crown and parliament being decided by a vote,” because endorsing monarchy at the ballot box would mean repudiating the very idea of elections. Free government is only possible when political differences are “looked upon as arising within the boundaries of these common principles,” expressed in the self-evident truths of the laws of nature.
Republican government depends on what Jaffa called the metaphysical freedom of the human mind—which includes the moral deliberation by which fellow citizens join in the partnership for the good life discussed above. Such civic friendship in the pursuit of happiness “implies a freedom in the mind to apprehend truth, and a necessity in nature, a necessity external to the mind, that determines what the truth is.”
In the last analysis, freedom is the ability to be determined by the truth. A free society is a fellowship—a unanimity, or oneness of mind—of those who recognize these self-evident truths as the basis of their social and political relationship, within which they can resolve their differences peacefully by debate, discussion, and free elections. Jefferson’s inaugural testifies to the existence of this unanimity sufficient to validate this peaceful process. It also testifies to the continuing necessity for such unanimity if the process is to continue…. Jefferson had said that there was no threat to safety from “error of opinion… where reason is left free to combat it” and that truth had nothing to fear “unless by human interposition disarmed of her natural weapons.” But what precisely are the conditions in which reason is “free”? And when is truth “disarmed”? Are not political campaigns for electoral supremacy precisely the times when the still small voice of reason is least heard, when passion and demagoguery obscure reason? [emphasis added]
So what happens when this unanimity no longer holds, when the small voice of reason is overwhelmed by demagoguery and ideology? Such an eventuality is hardly inconceivable. The founders were quite realistic about human nature, and mindful that the realm of statesmanship contains no guarantees. Such inquiries would bring us out of the realm of action and into the theory. Turning away, then, from any further practical considerations, let me conclude with a few points about how the founders conceived of the social contract—merely for the sake of philosophical edification about the founders’ understanding. Jaffa was fond of quoting this pithy statement from the Massachusetts Bill of Rights, adopted in 1780:
The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.
Reflecting on this, one might wonder (entirely on the level of idle speculation, of course) whether the United States has ceased to be “one people.” This hypothetical question would, of course, be a complicated and delicate one. It could plausibly be suggested that those who still adhere to the original compact remain one people, while those who are no longer what Jefferson called “American Whigs”—that is, those who no longer hold to the principles of the Declaration—have by word and deed left the compact, and believe in an entirely different set of principles. This would mean that there are two peoples, and two regimes, occupying the same country. Theoretically, there is no bar to this conclusion, however unprecedented and messy it may seem as a practical matter. This second regime might be characterized—hypothetically, of course—by such elements as show trials; public confessions of ideological deviation; the rewriting of history; and the subordination of facts, logic, and nature to the whim of the Party. I leave it to the reader to provide a name for such a regime. It is not the America of Madison or Lincoln.
What would the relationship be between these two groups who live in the same nation, but belong to different regimes (assuming for the sake of argument that those who left the original compact constitute a single group)? Those who still consider themselves part of the original regime, and thus bound by and to the principles of the founding, would retain the obligations of citizenship and friendship they owe to each other. But it would seem that a state of nature would subsist between them and those who have left the original compact and now embrace new (and perhaps antithetical) regime principles. What would that mean?
Can Two Peoples Inhabit One Country?
In social compact theory, a state of nature exists between independent and sovereign peoples, or nations. (Geographical considerations really have no bearing on these considerations, strictly speaking.) By the principles of natural justice sovereign individuals or nations in the state of nature have only the obligation not to harm each other without cause. The primary obligation of any people who have formed themselves into a compact is to preserve and protect their own safety and happiness. They have no right to injure anyone outside their compact without cause. Yet they may also do whatever is necessary to preserve and protect themselves. Self-preservation (aiming ultimately at happiness and the good life) is after all the point of forming the compact in the first place. War should be avoided, of course, because of the unjust suffering and unpredictable destruction it causes (for both victor and defeated); but it is justified whenever the members of the compact deem it necessary to their safety and security.
Again, this seems clear enough in theory, though there would be tremendous complications if the two peoples, or two nations, were intermingled—not merely in the same states, but even within the same communities, and perhaps households. Of course, this was also the situation to some degree with pro-independence Patriots and anti-independence Loyalists during the American Revolution. (Most of the Loyalists relocated by choice or coercion to Canada.) In any event, pursuing a resolution to such practical difficulties is far beyond the scope of this essay.
At this point, some readers may wonder whether the notion of two separate regimes raises the question of secession.
This essay is mainly an academic investigation into American political thought and history. Let me emphasize, then, that the following brief speculations are even more strictly theoretical, not practical. Moreover, this question is especially speculative if only because a return to the kind of robust federalism intended by the original Constitution would be such a drastic change from our current circumstances that reinstituting the states’ police powers and reviving local autonomy would for all intents and purposes look as if every state had seceded from the Union.
But for the sake of philosophical completeness, let me pursue the question of forcible secession—which means an involuntary breakup of the Union. A voluntary separation agreed to by all the states (going beyond a return to vigorous federalism) and carried out with the consent of the people of each state, would not be secession strictly speaking, but simply an exercise by the people of their sovereign authority to remake the government.
If we were to presume, however, that the current administration in Washington (and likely any future administration)—along with its supporters among sympathetic states—were to resist such a voluntary breakup, then any attempt to leave the Union would indeed amount to unconstitutional secession. There is no getting around this point that such action would contravene the Constitution and thus undermine any claim such states might make to be upholding the founders’ principles. With that stipulation, however, there are a few additional points to be noted.
Let me state, once again, that it is exceedingly challenging to discuss this topic at all, because of the association of secession with slavery and the old Confederacy. Moreover, I think it necessary to confront—extremely briefly—at least one of the several myths which contaminate discussion of the Civil War on both the Left and Right. To the degree that several states today simply wish to detach themselves from the intrusive overreach of the central government, it must be emphasized this was certainly not the motivation of the slave states in 1860, which emphatically did not want merely to be “left alone.” On the contrary, it was their demand for an unprecedented expansion of national power—in the form of a federal slave code for the territories—which alienated the South from the rest of the nation, and caused the rupture.
In April of 1860, well before the election of the Republican Abraham Lincoln, the southern delegates at the Democratic convention in Charleston, South Carolina walked out when the party would not accede to their demands for new pro-slavery laws at the federal level. Both national parties rejected the South’s demand to repudiate the principles of the Declaration of Independence and commit the entire country to a more explicit pro-slavery agenda. It was against this background that the South, in 1860-61, attempted forcibly to break up the Union by rejecting the results of the election in which Lincoln became president.
The myriad complexities of the Civil War are well beyond the scope of this essay, but it is noteworthy that the intransigent demands of the slave states (as well as the unique situation of the federal territories, which has no contemporary parallel) prevented any real discussion of voluntary separation on mutually agreeable terms. To name only one point, the southern states would not even consider Lincoln’s offers of compensated emancipation to end slavery—in part because several leading southern intellectuals no longer regarded slavery as a necessary evil, but had come to describe it as a “positive good,” to be further secured and enlarged with new federal guarantees.
While any attempt at forcible secession today would still lack a basis in the Constitution, it is important to appreciate this distinction. To offer a Lincolnesque illustration: When you see a man standing by a riverbank with his hand on a woman’s coat, it makes a great deal of difference whether he is pulling her out of the river, or pushing her in. So too, there is a great deal of difference between secession over the demand for a federal slave code, and secession over the rejection of, say, a federal speech code violating the First Amendment. (Of course, in many ways—ranging from campaign finance laws, to the politicizing of the tax code, to the raft of anti-discrimination statutes—the erosion of the First Amendment is already well along.)
There is, finally, one more argument which could be made today, and which the southern states pointedly did not invoke. That is the natural—as opposed to constitutional—right to self-preservation, which includes the right to revolution. To make such a claim would have immediately exposed the slaveowners to the charge that their slaves had an equal right by nature to revolt on behalf of their self-preservation. As Jaffa points out. “Slaves are by nature the enemies of those who enslave them. This is why the introduction of slavery is against the interest of the slaveholders themselves.” For this reason, he elaborates, the South was forced to make a specious claim to “secession as a constitutional right. They went to great lengths to avoid appealing to a right whose exercise would obviously apply far more to their slaves than to themselves.”
Arguments for seceding from the central authority today would certainly be made on the very opposite grounds: to escape despotism, rather than extend it. Of course—hypocrisy being the common coin of all political disputes—one could expect any number of inversions of language and logic in response. The 19th-century slave power defended secession on the basis of the “liberty” to own other human beings. Similarly, given our current political divisions, those wanting to leave—even to restore the principle of equal, natural rights—would certainly be accused by their opponents of “racism.” This charge, it hardly needs to be said, is an Orwellian lie. The word “racism” today is a political weapon, and generally means the opposite of what it meant to Jefferson, Madison, and Lincoln—who understood republican government to demand equality before the law. The propagandistic charge of “racist” today is deployed on behalf of racial preferences, anti-white “diversity training,” segregation on college campuses and elsewhere, and a Stalinist re-writing of American history. I leave aside the concomitant rejection of consent and representative government that underlies our administrative-state despotism, typically defended by “anti-racists.”
Beyond the Constitution—and more fundamental than the specific social compact that formed the American people—is the most basic of all rights. No less a Union man than Lincoln observed: “Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better.” Jaffa elaborates on his hero’s remarks with this statement:
Throughout American history—at least since July 4, 1776—it has been conceded that all people everywhere have the right to resist intolerable oppression. This is a right which belongs not only to the people of the state, but of any part of a state. Indeed, it belongs to each individual, although it is a right which is seldom valuable to individuals, since they seldom have the power to make resistance effective. But this right—the right of revolution— is a right paramount to the Constitution, and to all positive laws whatever. It is a natural right….
At this point, I will end my purely abstract speculations. Even as a theoretical matter, this most radical step would take us into terra incognita. (“It is a quality of revolutions not to go by old lines, or old laws; but to break up both, and make new ones,” Lincoln said.) I mention only that even at the utmost extremity, prudence retains—as always—its sovereign authority. If such a course were to be contemplated, it would be necessary to determine if the present situation is intolerable, whether there is a plausible alternative (that is, a sensible and fairly concrete plan for something better which would justify extreme action), and if there is a possible path to achieving that alternative. This latter condition need only be possible, not likely—for there are times when honor and justice may command great enterprises, even at immense risk, and even if the outcome depends to some degree on chance or providence.
Practicing the prudence I preach, I conclude by echoing Federalist 43: the “flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself.”
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Glenn Ellmers is the author of The Soul of Politics: Harry Jaffa and the Fight for America, which will be released later this year by Encounter Books.
Photo “Pledge of Allegiance” by Gage Skidmore. CC BY-SA 2.0.