The late historian Shelby Foote was fond of saying that prior to the American Civil War, when people spoke of America they would say, “The United States are….” After the war, the phrase became, “The United States is….” It is certainly true that although the war would create animosities and divisions which would last generations and, truth be told, still exist to this day, it did more than anything to finish the unfinished business from the Philadelphia convention and finally put the states under the jurisdictional control of the national government.
Could Hamilton and his allies in the State House in Philadelphia have envisioned that creating a federal legislative system with two masters – one for the people and one for the states – would produce a schizophrenic government that would one day implode? Perhaps. But they knew as well that if they had not made that compromise there would be no government at all, which would be a far worse outcome.
But they knew as well that they were creating a legislative process with which to pass all laws deemed “necessary and proper” and that through this legislative process such inequities could be addressed. They knew the final product was not perfect but, despite Thomas Jefferson’s hyperbole that the convention was an assemblage of “demigods”, they themselves were imperfect and could not expect a perfect result. They had to depend upon the wisdom of future generations to complete their vision.
Writing of the delicate balance between government and freedom, James Wilson wrote, “Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty loses its nature and its name, and becomes licentiousness.” Given the frailty of liberty and the nature of man, a free society must constantly guard against the twin forces of tyranny and capriciousness. Justice, therefore, comes not only from law or a constitution but from the very heart of society.
The framers of the Constitution spent a considerable amount of time debating and designing the judiciary branch – the Supreme Court and the inferior courts with all their scope, power and limitations. It was one of the ingenious checks and balances created to ensure that legislation was justly applied. Their recent experience with tyranny left them wary of any government capacity to limit or infringe upon the natural rights of man.
These men of the Enlightenment Age were well versed in natural law and the idea that the rights of men do not spring from government but are “endowed by their creator.” This is a decidedly American view of justice: that the supreme right resides with the individual, who then grants certain rights to the government so that it can adequately function and protect the rights of its citizens. At the time of the country’s founding it was more common to find governments which instituted laws to protect the government from the people. The new American system was intended to protect the people from the government.
The original Constitution that was ratified by the states in 1788 did not contain a Bill of Rights. It was the contention of the framers that such a bill was not necessary as the Constitution explicitly defined the powers of the new government in such a way that a Bill of Rights would be redundant and possibly even dangerous to the people. If a Bill of Rights was unintentionally not inclusive of all potential rights it could deny the people a specific right by omission. Nevertheless, such bills were commonly found in the various state constitutions, it was something the people expected and so in order to ensure ratification Madison promised that a Bill of Rights would be inserted as soon as the new government was formed.
Although justice is the second American virtue, it was not one that was easily arrived at and it is a virtue that will always be evolving. No nation or people can hope to achieve perfect justice, a state of being reserved exclusively for God. There is a natural tendency in man to give in to temptation, to detour from a godly path, making it is essential that all us seek guidance from the Creator to help us resist these temptations so that, as Lincoln said, we may be touched by “the better angels of our nature.” What is unique to the American experience is that we as a people understand this imperative even though we may not always achieve it. Innately, we are driven by our first virtue, compassion, to seek and apply our second virtue, justice.
Well, one might say, that certainly wasn’t true about America’s treatment of the Indians or the institution of slavery. Those historical sins do not quite reconcile with compassion and justice – old Jim Crow may have something to say about that. Yes, yes, yes, we say, but that was America then not America now and it is the very fact that those sins did occur, that America did rise up to confront them, often in ugly and violent ways, that America did evolve, that America has always been driven to perfect its society, to correct the inequities of the past and, yes, there are still inequities but what defines us is that we confront them. We look around the world today and we see nations in which the basis of society is race or ethnicity or religious preference or accident of birth, prejudices and inequalities which stretch back generations, even centuries. We see the institutionalized subjugation of women, the ruthless domination of minorities. Yes, America has sinned but America has sought and continues to seek redemption. As Frederick Douglass said, “There is consolation in the thought that America is young.” There are members of our own society who have yet to receive all the blessings of liberty but because compassion and justice flow through our veins, we will get there. We will get there.
It is a great truth of the American system that all people are created equal. Despite the presence of that central tenet in the Declaration of Independence, it wasn’t always so in America. At the time of the Declaration’s writing, “all men are created equal” applied only to men, not women, and only to white men at that. Little remembered is the Naturalization Act of 1790 which extended citizenship (and thus suffrage) only to white males. It would take nearly two hundred years for the country to evolve into what it was always intended to be and it seems that while our founders must shoulder the reality of the inequalities of their day, they should also be credited for their aspirations of freedom and justice. Had they not instilled in us the belief that “all men are created equal” we would not today have the foundations upon which to extend that belief to “all people.”
Where our founders would differ with the evolution of equality today is with the concept of social justice – that is, the imposition by force or persuasion of power of an unnatural equalization, the attempt to produce an equality of outcome rather than provide an equality of opportunity. It was a given in early America that Paul’s admonition in 2 Thessalonians must be heeded: “If a man shall not work, he shall not eat.”
Alexis de Tocqueville, writing in Democracy in America in 1835, noted: “…(O)ne also finds in the human heart a depraved taste for equality, which impels the weak to want to bring the strong down to their level, and which reduces men to preferring equality in servitude to inequality in freedom.” The greatness of America, he wrote, was that inequality could be overcome because equality of opportunity provided a means and an incentive for the poor to become rich. Such opportunity made America a unique and fascinating place.
Over the last century and a half the notion of social justice began percolating and went into hyper-drive over the last fifty years. Some people today refer to this philosophy as Marxism and in certain aspects that’s true. But the roots of social justice in this country go back to the mid-1800s and men such as Horace Greeley, owner of the New York Tribune, the most influential newspaper of its day. Greeley, a Republican (my how things have changed) believed that man had been corrupted by capitalist society and preached that economic competition was evil. He advocated forced redistribution of wealth as the moral solution to poverty.
By convoluting “justice” with social engineering and wealth redistribution and by portraying those who argue for less government intervention as heartless and cruel, the social justice advocates managed to accomplish little more than the enslavement of generations of Americans who have come to depend on the government for sustenance. Today, 42 million people are on food stamps – 15% of the population.
No matter how much money is spent on eradicating poverty in the name of social justice, it can never be enough. As James Davidson of the National Taxpayers Union said, “When you subsidize poverty and failure, you get more of both.” Is it any surprise, then, that Lyndon Johnson’s Great Society programs were such dismal failures? His economic team warned that without passage of legislation that would allocate hundreds of billions on the “war on poverty”, the unemployment rate could reach as high as 13%. After sixteen years of Great Society spending the unemployment rate stood at, you guessed it, 13%.
Are we as a people capable of having an open and honest discussion about justice and its unpleasant rival, social justice? True justice, as envisioned and practiced by early Americans, involved providing equal opportunity and rewarding hard work. Forcibly taking from one party to give to another is the very antithesis of justice, social or not. However noble the intentions, turning a person into a dependent of the state strips that person of human dignity. Our aim as a society should be to reinforce the dignity of all the people, not relegate them to the status of ward. Professor Ben O’Neill perhaps sums it up best:
“The notion of “rights” is a mere term of entitlement, indicative of a claim for any possible desirable good, no matter how important or trivial, abstract or tangible, recent or ancient. It is merely an assertion of desire, and a declaration of intention to use the language of rights to acquire said desire.
“In fact, since the program of social justice inevitably involves claims for government provision of goods, paid for through the efforts of others, the term actually refers to an intention to use force to acquire one’s desires. Not to earn desirable goods by rational thought and action, production and voluntary exchange, but to go in there and forcibly take goods from those who can supply them!”
While we must never underestimate the need for the government to provide a safety net for those truly in need, we must also not absolve society of its most basic responsibilities. To force society to be charitable through confiscatory polices breeds resentment and resistance. The role of government should be to nurture, foster and encourage the American people’s natural instinct for compassion.
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