The Law & Liberty website features what amounts to an attack on the American Founding by Professor Ted McAllister titled “Self-Rule is the Basis of American Nationalism… Not Natural Rights.” It is putatively a response to Steve Hayward’s Liberty Forum essay on nationalism, but fails to grasp the essence of Hayward’s argument. I will leave it to Hayward’s more than capable acumen and dialectical skill to answer McAllister on the subject of nationalism.
I take issue with McAllister’s tendentious claim that “the Founding should be understood not as a moment in 1776 but as a settlement of peoples, primarily from England,” who “inherited liberties, common law, and the fact that community is prior to government.” McAllister claims “this beginning place stresses our most important characteristic, that we are a people who want to rule ourselves and we do so typically through communities and associations.”
This is the longer version of the conservative mantra that “politics is always downstream from culture.” It isn’t true now, and it wasn’t true at the time of the Founding. It is this myopic view that prevents conservatism from ever winning politically. Conservatism always wants to fight “cultural wars” or “social wars.” Democrats—and even socialists—know that the decisive wars are waged on the political battlefields because politics shapes culture and society, either through free associations and institutions or by force.
A Clean Break
What liberties did Americans inherit from Britain? Not self-rule!
The American colonies had developed a modicum of self-rule in the century and a half before the Revolutionary War, but the list of tyrannical acts perpetrated by the king in the Declaration of Independence were not imaginary (or “abstract ideas”); they were an attempt to establish “an absolute Tyranny over these States.” And under the common law, all persons born within the king’s domain were subjects of the king who owed perpetual allegiance in return for his protection. Under the common law there were no citizens, only subjects. (The word “citizen” never appears in Blackstone’s Commentaries on the Laws of England.) The Declaration proclaims that the American people have dissolved their “allegiance to the British Crown,” thereby rejecting the common law of perpetual allegiance. This, of course, was a violation of the common law and was contested by the king, who was finally forced to recognize America’s claim to have become a “separate and equal” nation in the Treaty of Paris in 1783.
What was the origin of the right to self-governance? Was it produced by experience, tradition and culture as McAllister claims? In short, was it downstream from culture? It certainly wasn’t part of the inherited experience from Britain. American self-government was fiercely opposed by the British Crown. It was, however, the principal object of that “abstract idea” that rested at the center of the Declaration of Independence and the American Constitution. Had Americans followed British tradition and the common law they would have accepted divine right of kings, which however much it might have evolved into parliamentary supremacy under the common law, was still opposed to self-rule. Abraham Lincoln rightly noted that the argument for divine right and the argument for slavery was exactly the same argument—and so it is!
Reason and Creation
There can be no argument for self-rule or self-government that does not proceed from the self-evident truth that “all men are created equal.”
Among human beings there are no individuals or classes of individual who are so superior by nature as to be the ruler of any other human being in the way that every human being is naturally the ruler of every dog. This means that no one can be ruled without his consent; the “just powers” of government must proceed from “the consent of the governed.” Government exists to protect the life, liberty and pursuit of happiness of those who consent to be governed. In turn, those who consent to be governed incur the obligation to protect the rights and liberties of their fellow citizens. It is the consent of the governed that translated the subjects of kings into citizens of a republic.
The Declaration says that “all men are created equal” and “that they are endowed by their Creator with certain unalienable Rights.” There is thus a Creator and a creation, i.e., an ordered and intelligible universe from which the “Laws and Nature and Nature’s God” can be known. The Declaration clearly draws its authority from both reason and revelation and bases its morality—both rights and obligations—on those twin sources.
Republics do not spring from tradition or experience; they require founders—wise statesmen who understand the principles of politics and government and how they may be prudently applied under particular circumstances. Without the so-called “abstract ideas” of the Declaration, made concrete and real in the Constitution, there would be no self-government either for individuals or governments. Self-government was not inherited from British tradition. It came from the principles of the American Revolution–from men who understood the importance of politics.