Against the Libertarian-Pajama-Boy Consensus

Responding to C. Bradley Thompson

While I share C. Brad Thompson’s love for liberty and distrust of federal power, his reliance on the Declaration of Independence to interpret the ethos of the American Founding is of a piece with his interlocutors who favor greater use of national state power at home and abroad. I note this shared obsession both because it’s amusing and because ideas have consequences. Misconstruing the Declaration undergirds two long-running threats to American life and liberty: endless foreign adventurism and federal intrusion into every corner of American communities. Both are inevitable consequences of confusing the American revolutionary mind with its constitutional mind.

Thomas Jefferson called the Declaration “an expression of the American mind” in an 1825 letter to Henry Lee. In this letter, Jefferson also called the Declaration “an appeal to the tribunal of the world,” and said its content was shaped to give it “the proper tone and spirit called for by the occasion.” That occasion, we must remember, was not the establishment of a new national government, but an armed uprising against Britain. To fully understand the Founding, we must ask what came after.

In Plato’s Phaedrus, Socrates asks two questions every civilization must answer: “Whence come you, and whither are you going?” In America’s case, the Declaration may answer the first, but our Constitution answers the second. Thompson and the Pajama-Boys view the latter through the lens of the former, which is like looking through the wrong end of a telescope. Instead we must examine each document in light of the other. Just as we might look to the Declaration to inform our reading of the Constitution, we may ask whether the Constitution offers insights into the minds that crafted the Declaration.

The challenge, for those who represent the Declaration as the Rosetta Stone of American government, is that its central ideas—equality and inalienable rights—are all but absent from the Constitution submitted for ratification to the states. Thompson might fairly argue that the Constitution doesn’t mention air, either, and for the same reason—because its essential presence is taken for granted. Insofar as the Constitution offers a statement to explain “whither we are going,” however, it represents a vision far less consonant with Thompson’s conceptualization of society as an “aggregation of individuals with rights,” than with a pursuit of common good:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Founders were certainly passionate—more passionate than we—about the essential quality of individual liberty, but we needn’t conclude that they viewed those liberties as ends. There is far more evidence to indicate, rather, that they viewed rights as a means by which citizens could pursue a common good.

Now, the sharpest difference between Thompson and the Pajama-Boys is rooted in their disagreement about the meaning of this term. The difficulty Thompson faces is that it and similar phrasings infuse the Founding literature. He therefore interrogates FederalistPaper No. 10 to demonstrate that James Madison “clearly equates the ‘public good’ in this essay with the protection of individual and minority rights.”

The problem here is that Madison writes in No. 10 against factions united by a passion or interest that is “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Why, all who are familiar with English grammar must ask, would he have adjoined the second clause to the first with the conjunction or, which is a universally understood means of indicating alternatives? And why would he do so not once, but four times? It’s reasonable to conclude, then, that to Madison, common good and individual rights were not synonymous.

To be sure, as Thompson notes in his reading of Federalist Paper No. 41, the Founders intended the Federal government to have tightly circumscribed powers. This was not to protect an aggregate of individuals, however, but to ensure a union of states within which liberty might be preserved and common good pursued.

We need look no further for proof than the document Thompson himself cites to support his libertarian interpretation of “common good:” the Massachusetts Constitution, authored by John Adams. Thompson argues that the text of its preamble confirms his definition. “The laws created by the new government in Massachusetts,” he writes, “were to be created in light of the ‘end of the institution,’ which was to ‘secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquillity, their natural rights, and the blessings of life.’”

When we read past the preamble, however, we find more Puritanism than Lockeanism. The Massachusetts Constitution authorized legislators to require towns to build churches at their own expense, and to compel citizens to attend. It also authorized “the support and maintenance of public Protestant teachers of piety.” Lest we think this the exception that proves Thompson’s rule, note the document also gives the legislature “full power and authority” to establish “all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions…so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth…and of the subjects of the same.”

Before we attempt to shoehorn libertarianism into “full power and authority,” we should ask what the Massachusetts legislature did with its constitutional authority. The answer is a host of moral and economic strictures designed to enable—and in some cases goad—Massachusetts communities in their pursuit of the common good. There is no proper reading of these statutes—and therefore of the “full power and authority” clause—which comports with Thompson’s thesis. There is a straight line running through Massachusetts—and American—history, from the 17th-century Puritan stockaded for kissing one’s wife on Sunday, to tithingmen authorized by 19th-century statutes to spy on neighbors who violate the Sabbath, to 20th-century “blue laws.” We do well to remember that the novus ordo seclorum celebrated by the Founders on the Great Seal rested under the watchful eye of God.

Thompson is correct that America’s founding documents established a national government limited in how its officials might pursue the common good. He is wrong, however, to interpolate in those documents an ethos of libertarian individualism. The Founders and their countrymen clearly allowed for a vigorous pursuit of common good within states and communities in which the freedoms enshrined in the Bill of Rights were important, but not absolute.

The reason this matters is that the progressive Left, libertarians, and now elements of the traditionalist Right, insofar as they view the Declaration and Bill of Rights as America’s charter, deny the greatest and most distinctive of American freedoms: the right of self-governance. The extreme Left and Right want to empower Federal agents to enforce their opposing moral systems on communities, while libertarians applaud legal interventions that halt local efforts to regulate, tax, and protect local norms. These disparate groups are united by a consensus that their countrymen can’t be trusted to engage in the deliberative democracy envisioned by the Founders.

Surveying the American moral landscape today, it’s easy to understand why. But there is no alchemy that can yield freedom from institutional rules alone. “No theoretical checks,” said James Madison, “no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” The quality essential to avert pursuit of common good from the path of tyranny, in other words, is just as essential to maintaining a bare libertarian state: a love and respect for one’s fellow man. This in turn requires a web of social institutions that depend on positive actions toward the common good that Thompson would forbid. We both agree on the need to cultivate civic virtue, and indeed have partnered in the past to develop a “Founding virtues” program for use in schools. Where we part ways is that he believes allowing anything beyond a libertarian reading of “common good” will invite meddling that ultimately undermines individual liberty.

I don’t disagree with him about that risk, but I believe we should attend to a greater danger from the other direction. By way of illustration, consider the years-long rigamarole over whether local governments should be allowed to block access to pornography on public library computers. The ACLU and other plaintiffs have alleged in federal courts that the U.S. Constitution affords individuals the right to watch adults copulating on a computer screen in broad view of the public, in the middle of the day, and at taxpayer expense. Your only option as a community is to allow this, or close down your library completely. If you want to give children free access to Dr. Seuss, in other words, you must give adults free access to Debbie Does Dallas.  In a nod to children’s needs—and under opposition from civil liberties zealots—the Supreme Court ruled in 2003 that communities may install porn-blocking software on library computers, provided they unlock them when an adult patron asks. Subsequent cases have been fought over whether librarians are allowed to deny the adult’s request if children are within viewing range of the screen.

This is madness. And my point is not simply to point out a consequence of rights absolutism. It’s the consequence of the consequence that will destroy us. The defendant in that Supreme Court case was the American Library Association. Having imbibed the Declaration mindset, they take their mission to be more in line with defending pornography access than protecting community norms. And we see this in institution after institution. Churches gone wishy-washy over abortion. Schools terrified to discipline students. Communities where it’s easier to prescribe a psychotropic drug for a child than it is to take a gun away from someone with mental illness. Civilizational order depends far more on shared norms and values than laws and rights. As seemingly permanent mob rule in Portland has made strikingly clear, when enough of our fellow citizens are in the grip of poisonous ideology, no police force can protect the rest of us. It’s civil rights absolutism that has kept us from firing teachers who indoctrinate our children, defunding universities that foment radicalism, and running advocates of violence out of town on a rail. To paraphrase Justice Robert Jackson, the Constitution was never intended to be a suicide pact.

To be clear, I don’t believe Thompson favors pornography in libraries any more than I do. From what I know of his commitment to protecting and raising children, I would count myself fortunate to live in a community full of people like him. I would trust my fellow citizens in that community to make decisions about who teaches our children, what should be forbidden on library shelves, what video games should be sold in our local stores, and a host of matters that have been taken out of the province of democracy and placed in the domain of bureaucrats and courts. Every generation where we continue to deny communities these powers the Founders surely afforded them, the more we erode our ability to sustain the freedom and community well-being that Thompson and I equally treasure.

Tony Woodlief is Executive Vice President of State Policy Network