To say the least, he was irritated.
Frustrated with a capricious sovereign and forced (on principle) to take a life-altering stand, Thomas Jefferson’s quill scribbled furiously. The English crown, he fumed, could not expect a people to suffer such indignities. Oppressive taxation. Obstructed commerce. Second-class citizenship. It was enough. And so he wrote. With every careful word, there widened a breach. In every thoughtful idea, there confirmed a rupture. And when the Second Continental Congress signed the Declaration of Independence (publicly reading it four days later amidst the toll of the Liberty Bell), they had arrived at the point of no return — de facto and de jure rebellion. For the American experiment, July 4, 1776, proved both a bitter end and a glorious beginning.
What the young aristocrat penned on that fateful day nearly 250 ago, however, was only a chapter in the story of America’s birth. By the time the Declaration was read, the American colonies had been in open (albeit largely unsuccessful) conflict with the British for over a year. And after the Declaration’s ink was dry, the new country would still have to clumsily battle the British Empire for seven more years, hold a raucous, months-long Constitutional Convention, furiously debate Constitutional ratification (through the pseudonymously signed Federalist and Anti-Federalist Papers), and further make the Bill of Rights the law of the land. The birth of the nation was glorious, but the labor pains were protracted and plenty.
But would the American idea work?
This unparalleled and untested form of government — an infant in its most vulnerable stages — had no guarantee of survival. To endure, it would be essential for the American citizens to know who they are. Thomas Jefferson and his fellow signatories made this plain as early as the second paragraph of the Declaration:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . .
What a vision of humanity! The American people would not be the sole possessors, but the awakened evangelists and ardent defenders of self-evident — that is, obvious — truths. We are equal, Jefferson wrote, and endowed with the ineradicable, God-given right to live, to be free, and to pursue our dreams. As such, we are capable of and entitled to governing ourselves. Notwithstanding the broken policy of slavery, this founding vision was realized in part (in ridding the shackles forged by capricious Britain), and aspirational in whole (in bringing opportunity to every man and woman through evolving institutions of culture and law). Who, then, are the American people? The Founders answered: We are men and women of supreme dignity and inexpungible fallibility.
Let us explore this. What exactly does this mean? It is something we have known first as Catholics and then as Americans.
Our dignity is rooted in our identity as children of God. As such, we have Rights that cannot be compromised by even the most vigorous of governments. At the same time, our fallibility is steeped in the stain of sin and imperfect appetites. Thus, we have Duties from which we cannot escape. Within each soul, therefore, there is a constant tension between the Rights to which we are entitled and the Duties to which we are called. James Madison, the father of the Constitution, recognized that the whole enterprise of citizenry and governance was shot through with genius tainted with imperfection saying:
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 the next place, oblige it to control itself.
Man, then, is a paradox. Simultaneously dignified and fallible, he is perpetually at war with himself over whether to do what is right or what is expedient. This saddled the Founders with a difficult question: How would America govern and be governed when its leaders and citizens struggle to effectively govern themselves? The answer is to find a sensible balance between our Rights and our Duties.
What kind of balance must America strike to become an enduring, functional state? The Founders’ ideas were rooted in the philosophical thought of Greece, the Judeo-Christian tradition of Jerusalem, the legal wisdom of Rome, and the Enlightenment insight of Europe, but the American balance is fundamentally informed by customs, morality, and common sense. Why? Because theories are one thing, but practice is another. In governance, to dismiss the mercurial, enigmatic nuances of human nature is to prepare for failure.
To be sure, the American balance would be rooted in law and culture, but it would have to be nimble and nuanced. Tipping too far toward rigid law would risk oppression. Leaning too far toward wanton liberty would risk decadence. Government-crafted law would be agreed upon to restrain man’s worst appetites while simultaneously fostering his greatest aspirations. Civil society would center around interests and values shared by the people. Culture would thus develop organically, springing forth from faith institutions, interest groups, and neighborly organizations which would further form man in virtue and ward him away from vice.
And so, from our nation’s inception, the ingenious balance would be crafted. A dynamic tug-of-war would ensue between the government and the people, the state and federal government, the branches of government (executive, legislative, and judiciary), and the structure of the Constitution and the liberties of the Bill of Rights. Furthermore, a less formal, but no less rich balance would emerge between layers of society (personal freedom, civil society, and the state), between political parties, our identity as a democracy or republic, and between subsidiarity and solidarity.
The American balance is ever-shifting. At some point in time or in some areas of concern, state governments may be more powerful than the federal government, society may be more inclined toward solidarity than subsidiarity, or rights may be more championed than duties. At other times, the opposite will be true. This is as it should be in the organic evolution of a polity. In the healthy American society, relationships are forever shifting in their shares of power. But that power should never be permanently concentrated. It is when an imbalance goes too far or fails to correct that our society begins to fray.
Over 200 years since the Founders forged our Republic, the United States has lost its way. It has become imbalanced. Certain aspects of government are abdicating while others are overreaching. Rules are being bent, laws are unenforced, and the spirit informing law has been forgotten. The citizenry is apathetic and uninvolved or crafty and manipulative. Truth is jettisoned and propaganda is the order of the day. Our culture has become decadent. America is in a structural and cultural crisis.
Several year ago, in a winsome but puckish exchange between two great friends and philosophical sparring partners, Justice Antonin Scalia and Justice Ruth Bader Ginsburg, debated which was more important: the Constitution or the Bill of Rights. Ginsburg championed the Bill of Rights as the guarantor of our greatest freedoms, but Scalia wasn’t so sure. He would argue:
The Bill of Rights should not be painted as the foundation of the American democracy . . . Don’t forget that the Bill of Rights was an afterthought. It was not what they debated about in Philadelphia in 1787. Now, a couple of states that ratified the Constitution made it clear that they expected there to be Bill of Rights added, but it was added in 1791 on the proposal of the First Congress. What they thought would preserve a free society was the structure of the government. That’s what they debated about in 1787. And if you think that’s false, just look around the world — every tinhorn dictator in the world today has a Bill of Rights. It isn’t the Bill of Rights that produces freedom; it’s the structure of government that prevents anybody from seizing all the power. Once that happens, you ignore the Bill of Rights. So, keep your eye on the ball. Structure is destiny.
The Congress is designed to represent the will of the people. Charged with making laws and beholden to their constituency through frequent elections, senators and representatives are well-served by understanding and responding to the needs of their citizens. But the modern Congress has become derelict in their duty. Courted by lobbyists, spouting soundbites, and offering safe, platitudinous speeches to empty chambers, they have forgotten their fundamental duty: to make law that effectively navigates the ship of state. Instead of industriously researching a problem and courageously championing a solution, they run their perpetual campaign and defer lawmaking or difficult decisions to the executive or judicial branch. For example, comprehensive immigration reform went unaddressed in the Obama administration due to Congressional gridlock or simple inaction raising unaddressed concerns regarding national security, human rights, and economic import. As a result, President Obama issued far-reaching executive action such as Deferred Action for Childhood Arrivals (DACA), the expansion of provisional unlawful presence waivers, extensions for special groups (foreign students, researches, inventors, entrepreneurs), and border security and deportation measures. In effect, widespread measures affecting millions of immigrants and communities across the country were implemented by a presidential pen in the presence of an uninvolved Congress.
A necessary, but unresponsive Congress creates a dangerous imbalance.
The executive branch under the Presidency is responsible for faithfully executing the law. But the executive branch has grown to gargantuan proportions. An immense bureaucracy devoted to Defense, Education, Health and Human Services, State, Agriculture, Justice, and more has not only carried out law, but has willingly created law and, at times, taken control of the interpretation of law and the settling of legal disputes that arise. This bureaucracy (also known as the Administrative State) creates a great imbalance as it is insulated (other than by the elected president and his appointees) from the voting public. It usurps lawmaking and judicial work that is in the purview of the legislative and judicial branch respectively. An example of this is when Kathleen Sebelius, President Obama’s secretary of Health and Human Services crafted law (known as the HHS Mandate) requiring all employers and educational institutions to provide contraceptive and abortifacient medications and sterilization procedures. Over the course of six years (2011-2016) entities such as Belmont Abbey, the Little Sisters of the Poor, Hobby Lobby, the University of Notre Dame, and innumerable Catholic conferences found themselves at risk for bankruptcy and at odds with their own government in federal courts, including the Supreme Court. The HHS Mandate was devised, enforced, and defended by unelected bureaucrats in the Administrative State using the limitless wealth and resources of federal government.
A powerful, yet unaccountable Administrative State creates a troubling imbalance.
The Supreme Court was designed to be the most conservative branch of government (that is, the most resistant to change). Charged with ensuring the laws enacted are in keeping with the Constitution, the Bill of Rights, and subsequent statutory law, the Court is the repository for America’s centuries-old legal tradition. But the philosophy of the Living Constitution affords unelected Justices the ability to offer interpretations of Constitutional or statutory law that deviate from its text and original meaning. As such, new laws, new rights, and new interpretations emerge from the Supreme Court every year. This makes the Court a focal point for protests and advocacy groups when the role of legislation belongs in the hands of elected congressional representatives. Justice Scalia championed textualism and originalism, the judicial philosophy that legal interpretation begins and ends with the text of the law and its original meaning. As the Living Constitution emerged as a dominant judicial philosophy, Scalia warned that rights and restrictions not articulated in the Constitution or Bill of Rights and not passed and signed into law are being created by nine unelected judges. He would elaborate:
With all this development, away from originalism, that has occurred within the past forty years, we believe, the Supreme Court believes, and, worst of all, the American people believe, that . . . the whole Bill of Rights, the whole Constitution, “reflects the evolving standards of decency of a maturing society.” Or, to put it more simply, the Constitution means what it ought to mean. Not what it did mean, but what it ought to mean.
And so, what comes with all of this sophistry? All sorts of rights that clearly did not exist at the time of the adoption of the Constitution and the Bill of Rights exist today. It’s plain absolutely plain, that the right to an abortion was not thought to exist in 1791 or at the time that the post-Civil War amendments were adopted, since there were laws against abortions in all the states. It’s absolutely plain that there was no right to die, since there were laws against suicide. And you can go right down the list.
He would later ask:
If the constitution is not an ordinary law but rather this empty bottle into which each generation is going to pour the liquid that it desires, why should the bottle be filled by nine unelected judges? Why would you think these nine unelected members have their thumb on the pulse of people so they know what the evolving standards of decency are?
A legally untethered, subjectively driven Supreme Court creates a concerning imbalance.
Laws are only as good as our willingness to follow them. While the government can serve, with its police powers, as our external monitor, a society will not stand unless people are responsive to their inward monitor. To have a fruitful society, we must attend to what we ought to do, not just what we have to do or want to do. In effect, the American idea aspires that we not only do good, but that we are good.
The Founders uniformly recognized this truth. George Washington noted, “Virtue or morality is a necessary spring of popular government.” Benjamin Franklin agreed that, “Only a virtuous people are capable of freedom.” James Madison wrote that, “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” John Adams famously observed, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” And the outspoken Samuel Adams asserted, “Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt. He therefore is the truest friend of the liberty of his country who tries most to promote its virtue.”
In today’s America, there is scorn for authority and skepticism for tradition. The sense of duty and calling is increasingly displaced by appetite and pleasure. The lofty has given way to the base. The lyrical has devolved to the vulgar. People riot, but don’t vote. People complain, but don’t volunteer. People yell, but don’t listen. And people pontificate, but don’t think. Civil society has atomized, unified only in rage. Faith is disdained, yet there is a desperate hunger for meaning. Hope is scoffed at, while anxiety and depression soar. We trade in cynicism. We smirk in irony.
Morally confused and civically disengaged, we have lost our cultural balance.
The Way to Restoration
Over two hundred years ago, as Jefferson sat hunched over blank parchment, his world was out of balance and the way forward was not altogether clear. In his haunting poem, The Second Coming, W. B. Yeats wrote:
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
Is liberal democracy exhausted? After all, no less than Winston Churchill, the roaring lion of democracy once observed:
Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time. . . .
Were the ideas of Jefferson and Madison, Hamilton and Adams noble, but hopelessly naïve? Perhaps, but perhaps not. After all, human beings will bring their brokenness into whatever system we devise. Perhaps it is time to do our part to make democracy work, if not perfectly, then just a little better.
To reclaim our balance, it is time to return to the center — to a sensibility that honors our duties and preserves our rights, that cherishes our dignity while grappling with our fallibility, that preserves our family while lifting up our neighbors. We must practice our faith and champion our culture, know our civics and honor our past. We must once again answer the call to citizenship by voting, calling Congress, supporting causes, and penning essays. We must debate and not quarrel, think and not simply react. We must have great expectations for ourselves and for others. We must remind our government and fellow citizens of the great American standard for excellence. And we must not settle for snark and cynicism, intolerance and violence. We are better than that.
To be sure, our country is a miracle. It has endured terrible calamities and presided over unparalleled victories. It has made great mistakes and mounted even greater comebacks. But our country is listing now. In some way, we have fallen out of balance and forgotten who we are. But our nation is not finished, and it is in need of you and me.
Let us do good things and be good people.
Let us set to restore the balance.
And let us remember who we are: responsible citizens, yes, but first dignified, fallible children of God.