The Founders learned from history that oppression crushed prosperity and so chose to set America on a different path.
The Founders learned from history that oppression crushed prosperity and so chose to set America on a different path.
W hy liberty? If asked that question, America’s Founders would have reflected not merely upon philosophy but upon human experience. When Thomas Jefferson wrote that “Life, Liberty, and the pursuit of Happiness” were among men’s God-given “unalienable Rights” and that “to secure these rights, Governments are instituted among Men,” he distilled millennia of Western experience into fundamental principles of human prosperity.
The Founders learned from history that oppression crushed prosperity and so chose to set America on a different path. Today, though, progressives of the left and the right urge Americans to abandon the principles of the Declaration in exchange for ideas Calvin Coolidge a century ago called “ancient” and “reactionary.” Though alternatively arrayed as progress toward an idealized future or a return to the idyllic past, these ideas, if implemented, would return America to a “time when there was no equality, no rights of the individual, no rule of the people.”
Just as it informed Jefferson’s drafting of the Declaration of Independence and the work of the Constitutional Convention, so history guided the first Congress as it selected rights to protect with specificity in the Constitution.
This principle is best exemplified by the First Amendment, which protects, among other things, the “free exercise” of religion. For the Founders, religious liberty was not an abstract concept. Rather, it was a necessary condition of peace and human dignity. As the founders were aware, throughout history, religious minorities had faced persecution for their convictions, and innumerable were the casualties of religious wars. Thus, James Madison, reflecting on this history, wrote that “torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by proscribing all difference in religious opinions.”
As Jefferson once noted, at the hands of religious persecutors through the ages, “millions of innocent men, women, and children” had “been burnt, tortured, fined, imprisoned” without any progress “towards uniformity.” Instead, this history of religious coercion and bloodshed had accomplished nothing but to “make one-half the world fools, and the other half hypocrites.”
Even the phrase “free exercise” is the fruit of experience. As eminent law professor and former federal judge Michael McConnell has explained, religious “liberty” before the time of the Founding consisted of “mere toleration,” to quote Founding-era essayist Tench Coxe. According to McConnell, for example, “when George Mason proposed the term ‘toleration’ for the religious liberty clause of the Virginia Bill of Rights, Madison objected on the ground that the word ‘toleration’ implies an act of legislative grace.”
The American vision of religious liberty was different. In a letter to the Hebrew congregation in Newport, R.I., President George Washington wrote that “the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance.” President Washington rejoiced, “It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights.”
Religious liberty belonged to all, both because, as Madison wrote, one’s duty to God “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society,” and because “time has at length revealed the true remedy” to religious strife: liberty.
Likewise, the Founders understood from history and experience that economic liberty and equality were essential to prosperity. The contracts clause of Article I prohibits states from “Impairing the Obligation of Contracts.” As law professor James W. Ely Jr. has explained, this protection was “inserted into the Constitution without extensive debate” and “was clearly prompted by the sour experience with state debt relief laws during the Post-Revolution Era.” Debt relief laws, which canceled contractual obligations of more populous, and thus more politically powerful, debtors, left creditors without hope of full repayment, depriving them of their right to property.
The more fundamental principle underlying the contract clause, that government should not use its power to benefit the favored at the expense of the disfavored, was a lesson the Founders had learned from history before they experienced it in their own states.
As Benjamin Franklin explained before the War for Independence began, “The ordaining of laws in favor of one part of the nation, to the prejudice and oppression of another, is certainly the most erroneous and mistaken policy” because “these measures never fail to create great and violent jealousies and animosities between the people favored and the people oppressed.” These preferential laws create social discord “by which the whole state is weakened, and perhaps ruined forever.”
Defending the proposed Constitution in Federalist No. 10, Madison echoed Franklin, explaining that “complaints are everywhere heard . . . that the public good is disregarded in the conflicts of rival parties,” because state legislatures adopted policies “not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”
The result of laws that prioritized the desires of the majority over the rights of the minority, John Adams elsewhere warned, was that “the idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery.”
Liberty, whether religious, economic, or otherwise, the Founders understood, leads to peace and the opportunity for prosperity. Tyranny and oppression, on the other hand, lead to and expand by violence and misery.
The blood of the revolutionary soldiers fertilized the tree of liberty, but its seed was planted in soil tilled by long experience and careful reflection. Those who invite Americans to replace that hard-earned wisdom with faith in a new program of control either fail to heed the lesson of history or knowingly spurn it. Americans should ignore the siren song of empty promises and hold fast to the mast of liberty.
Editor’s note: This is the second in a four-part series on constitutional order.