A Charter of Power Granted by Liberty
“In Europe, charters of liberty have been granted by power. America has set the example . . . of charters of power granted by liberty.”
James Madison wrote these words in 1792, five years after the Constitution began its journey toward ratification by the states. Today marks the 227th anniversary of that beginning — the signing of the Constitution by the 39 delegates to the Philadelphia convention. Madison’s statement is one of my favorites because it conveys, more than any other quote I can think of, the proper relationship between individuals and government, which is a key part of the profound moral significance of the Constitution and the government it created.
For all of world history until the American Founding, the reigning political principle was the supremacy of the state. This was the dominant view in England during the Founding era. As the English jurist and scholar William Blackstone expressed it, “a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man” with “one uniform will.” In his book, Patriarcha, the English political theorist Robert Filmer compared the state to a parent guarding and directing its dependent children. Government should act in the interests of its subjects, according to this view, but it was clear who was subservient to whom. As Blackstone said, “there is and must be in all [governments] a supreme irresistible, absolute, uncontrolled authority, in which . . . the rights of sovereignty, reside.”
Under this view, what little freedom individuals possess is not theirs by right, but by permission. That’s what Madison meant by charters of liberty granted by power. A charter of liberty is a carve-out — an exception to the supreme power of the state that individuals win from their rulers by privilege or concession, typically after war or conquest. The Magna Carta is an example of this, as is the English Bill of Rights. Both were extremely important developments in political history, but neither changed the basic relationship between the government and the individual. Individuals had more freedom after these developments, but government was still seen as supreme.
The American Founding changed that. To quote Madison again, under the American view, government’s authority, is “derived not from the usurped power of kings, but from the legitimate authority of the people.” The key moral concept at the heart of that legitimate authority is individual rights — the idea that individuals are sovereign and independent, that they own their own lives and have the right to live according to their own designs and to pursue their own happiness.
But the concept of individual rights is not self-executing. The English possessed the idea for at least a century before the American Revolution. It was the American Founders who followed the principle of rights to its logical conclusion and constructed a government that started with the premise, not of state supremacy, but of individual freedom. To be sure, their approach was not fully consistent, with slavery being the glaring exception to the principle of rights. But the point is that the Founders got the basic orientation between the government and the individual correct. Indeed, slavery was an example of the supremacy of the state over the individual. It was ultimately defeated by following the Founders’ approach to government more consistently than they did themselves.
Under that approach, government does not grant liberty to its citizens; individuals grant powers to their government, and they do so for the limited purpose of protecting their freedom, which means their rights. The mechanism that accomplishes that is a written constitution that enumerates the government’s limited powers and divides them among separate branches to ensure that no individual or group can possess enough power to become despotic.
Today we have a tendency to celebrate the Bill of Rights as the chief protector of our freedom, but that’s a mistake. As Alexander Hamilton said in opposing the addition of a bill of rights to the Constitution, “the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights.” Hamilton was concerned that adding a bill of rights would put Americans right back where they had been under English rule — pleading for a limited list of rights from an all-powerful government. “[T]he sacred rights of mankind,” he once said, “are not to be rummaged for among old parchments or musty records.”
I don’t mean to denigrate the importance of the Bill of Rights, not least because, today, it’s about the only thing, constitutionally speaking, that protects what limited rights we have. But we should recognize that Hamilton’s concern was well-taken at least in this respect: the downfall of liberty in America has occurred in large part because we rejected the proper moral relationship between government and individuals that the Founders embraced — the view captured in Madison’s quote at the beginning of this post. This began in earnest in the late 19th Century and became embedded in law and politics during the New Deal. There’s much more to say about this, but I’ll leave you with one quote that captures the point. This is FDR in one of his famous speeches about government: “Government is a relation of give and take, a contract . . . . Under such a contract rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights.” “Accorded,” we may ask, by whom?
In one of the great intellectual inversions in American history, FDR and his fellow travelers were known as “Progressives,” yet the view of government they embraced — the supremacy of the state and the subservience of the individual — is not much different from the ancient view the Founders rejected.
If we want to recover the freedom we’ve lost and rehabilitate our battered Constitution, we need to reject this view and reassert the Founders’. In short, we need to start considering our Constitution as a charter of power — very limited power — granted by liberty.
If you need some motivation in this fight, Constitution Day is a good time to consider what the Founders accomplished in getting us this far.