Fresh Air and Common Sense

The following text is from a speech I delivered at the Lake County Chapter of the Daughters of the American Revolution on May 19, 2012.  The topic was the Bill of Rights.  I have been invited back next month to speak on the topic of the War of 1812.

The Power of an Idea

The late Steve Jobs believed in the power of an idea.  He wasn’t a particularly brilliant engineer.  People who knew him back in Apple’s early days might tell you Steve was a great man, but that Steve Wozniak was the real brains behind Apple.  After all, that is how Apple Computers was founded.  Woz would invent something, and Jobs would sell it.

The greatest strength of Steve Jobs was his belief in the power of ideas.  He would get an idea, and no matter how much people would tell him it couldn’t be done, Steve would tune them out and hold fast to his idea.  Those who knew him referred to it as his “reality distortion field.”  Reality didn’t apply in Steve Jobs’ world, because while other people were looking at the world that is, Steve was looking at the world that could be.  Steve Jobs, and those around him, driven by his vision, changed the world.

Ideas are powerful things.  Winston Churchill once said that “all the great things are simple, and many can be expressed in a single word: freedom, justice, honor, duty, mercy, hope.”  It is that first idea, freedom, that I want us to take some time to consider.  This idea of freedom is very powerful in the American psyche, and nowhere is that idea embraced tighter than in the Bill of Rights.

But how important an idea is it really?  If we judge by the public’s knowledge of the Bill of Rights, sadly, not very.  In a recent study by the McCormick Tribune Freedom Museum, one in four Americans can name all five members of TV’s first family of animation, The Simpsons.  Meanwhile, far fewer can name the five basic rights found in the First Amendment to the Constitution.  So, how do the freedoms of speech, religion, press, assembly and petition stack up against Homer, Marge, Bart, Lisa and Maggie?  While one in four can name the Simpsons, only one in one thousand can name all five freedoms in the First Amendment.

Nat Hentoff, a syndicated columnist says that “most people are largely uneducated about their constitutional rights and liberties.”  To prove his point, he wrote out the text of the First Amendment on a chalkboard during a presentation.  Afterwards, a woman came up to him and said “my the law is really changing … is this new?”  The woman happened to be a retired school teacher.  Thomas Jefferson said that education is needed “for the preservation of liberty.”  I feel for this woman and her students.

Let us then, look to the topic at hand, the Bill of Rights.  To understand the power of these ideas, we need to look further back at where they came from.  In the Declaration of Independence, we find the statement “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.

We have heard the words, we have read them.  But what are the ideas behind them?  Ideas get their substance and form from words, and words mean things, because they are an expression of ideas.  The two ideas that are most important in this passage from the Declaration of Independence are that our rights have a source, and they have a scope.

The source of our rights is plain to see in this statement.  The source of our rights is our Creator.  We have these rights because God gave them to us.  They are a part of our very humanity, and they are a gift from him.   Many people today believe that government is the source of our rights.  That somewhere along the line, a benevolent politician stood up and said ‘let the people have a voice and speak,’ and presto, we had freedom of speech.  Nothing could be farther from the truth as Jefferson saw and wrote it in this immortal document.  He instead affirms the existence, action and benevolence of the creator in bestowing upon us our basic rights.

As to the scope of our rights, well that is a bit tricker.  Or is it?  As Churchill said, the greatest ideas are often the simplest and can be described with a single word.  In the case of the scope of our rights, that word is unalienable.  When something is unalienable, is means that it is ‘not to be separated, given away or taken away.’  In other words, we have our rights forever.  As far as scope goes, forever is a long time … I haven’t seen anything longer than forever, have you?

The idea of natural rights, that is, rights based on our very humanity, did not originate with Jefferson.  More importantly, the idea of our rights did not originate with the Constitution and the Bill of Rights.  Kant said that man derives natural rights through reason alone.  The famous Oxford law professor H.L.A. Hart argued that “if there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly, to free life.”

English philosopher Thomas Hobbes wrote a book about government, oddly enough, he called it Leviathan.  In it, he explains that natural rights, life and the liberty to do with it anything that will preserve, extend and enrich that life exists in contrast with natural law, which forbids a person to do anything that is destructive to the life of another.  James Madison points out in Federalist #51 that “if men were angels, there would be no need for government.  This echoes Hobbes’ statement in Leviathan where he points out that unlimited liberty would lead to a war of ‘all against all’, making life “nasty, brutish and short.”

Thus we see, government i necessary, not for the granting of rights, for Thomas Paine, the great American philosopher of liberty contends that “it is a perversion of terms to say that a charter [a constitution] gives rights.”  A government does not exist to grant rights, but to balance and protect those rights which we already possess.

The act of balancing rights is the act of being a referee when the rights of two people clash.  As I explain to my students, I have a right to swing my fist at arm’s length all I want … until that fist comes into contact with another person.  Once that happens, the government has to step in to decide whose rights were infringed, my right to swing my fist, or the other person’s right not to be punched by me?

It was an unenviable task in 1787, when twelve of the thirteen former colonies sent representatives to Philadelphia to draft a new Constitution.  This Constitution would bring into being the nation envisioned in the Declaration of Independence.  The first charter, of the first modern nation was being written.  A nation was being born, not of the force of arms, but of the will of the people.  This is why this most pre-eminent of documents in human history begins with what are in my mind the three most important words of any government charter: “We the People.”

“We the people.” Never have three words been so important.  Never have three words caused so much controversy.  Entire volumes have been written talking about just who was included in “we the people.”  Lucy Stone, one of America’s earliest crusaders for women’s rights lamented “which ‘we the people’?  Women weren’t included.”  Memo to Ms. Stone: were I alive back then, I wouldn’t have been included either … I don’t own property.  Back in those days, voting rights were based on owning land, because that is how people were taxed.

Thurgood Marshall, the first African-American to serve on the Supreme Court, used “we the people” to justify his belief in a Constitution which is open to being adapted by the judiciary.  “For a sense of the evolving nature of the Constitution,” he said, “[one has no further to look] than the first three words of the document’s preamble: ‘we the people.  The men who gathered in Philadelphia could not have imagined, nor, I suspect, would they have accepted that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendant of an African slave.”

Lets look at the ideas behind the words “we the people.”  To Ms. Stone and Justice Marshall, the words represent an inclusive/exclusive idea.  Certain people are included in “we the people”, while other people are not.  To these two individuals, and others who share their ideology, “we the people” is seen as a flaw in the Constitution that needs to be corrected by enlightened, modern minds.

“We the people” is not a statement of identity.  It is a statement of authority.  It is establishing, publicly, for the world to see, who has the power in this country.  It doesn’t say we the rich white landowners, it says “we the people.”  It doesn’t say we the corporations, it says “we the people.”  It doesn’t say we the unions, it says “we the people.”?  Why is it that back in the day we the people WAS only the rich white landowners?  Because they were the ones paying for government.  Just as the owner of a piece of land, paying for the construction of a new house controls the building of that house, the people paying for the functions of the government should control that government, and they should be honorable individuals, exercising that power with others in mind.  They were, after all, as Justice Ginsburg would later observe “gentlemen of their times.”  

The preamble of the Constitution follows a particular rhetorical pattern: identification, justification, action.  It identifies the actors: “we the people”.  It then lays out a justification for the actions to be taken, and finally, it states the action to be taken.  When a student comes to me and says “I did my homework,” they are not casting aspersions on other class members by implying that they didn’t, they are simply telling me what they did.  By stating “we the people,” the founders are not implying the exclusion of anyone.  As a matter of fact, if we removed the justification portion of the preamble, we are left with the following short, stubby sentence: “We the People of the United States, do ordain and establish this Constitution for the United States of America.”

At the core of debating the meaning of “we the people” is a discussion of priority and order.  It is like the old argument of which came first, the chicken or the egg.  “We the people tells us that society formed the government.  Way too many people want to reverse the order and say that the government formed the society.  Abraham Lincoln, in the Gettysburg Address gave voice to this idea best when he described the United States as a government of the people, by the people, and for the people.

Having reached this point, we have a government formed by the people, but why?  Why would these people, who believed in individual personal freedom, who had just thrown off the yoke of British rule create a new national government?  John Locke, who was identified by Thomas Jefferson as one of the three greatest minds in human history, said that government exists to protect the life, freedom and property of the people.  He further said that a government that claims absolute power over its subjects cannot be morally legitimate.  Can you tell that Locke was a fan of limiting government power?

Likewise, Montesquieu believed that to limit the power of a government, the power of government had to be divided, or the rights of the people would be sacrificed on the altar of government power.  This separation of power breaks the government into its component parts: legislative functions, executive functions and judicial functions are discreet and entrusted to different groups of people.  This was seen as the most effective way of protecting the people from the possibility of a government gone wild.

The structure of the Constitution is another way the founders intended to protect the rights of the people.  When writing the Constitution, they placed specific limits on government actions.  In article I of the Constitution, the government is given a specific list of powers to exercise in section 8. Just in case there was any confusion, in the very next section, they gave a list of powers forbidden to the government.

As the primary architect of the Constitution, James Madison believed that the idea of protecting the rights of the people would be fulfilled in these two lists, and that should be enough.  Agreeing with Madison, Patrick Henry said “the Constitution is not an instrument to restrain the people, it is an instrument to restrain the government lest it come to dominate our lives and interests.”

While James Madison is often referred to as the “Father of the Constitution”, the title of “Father of the Bill of Rights” falls upon his fellow delegate from Virginia, George Mason.  Mason was a faithful member of the convention, participating in deliberations on all matters of substance discussed.  In the end, he chose not to sign the completed Constitution because of the lack of a Bill of Rights.  Mason had written the Virginia Bill of Rights and the Bill of Rights later added to the Constitution largely copied Mason’s earlier work.

The Bill of Rights is a true expression of limited government.  Beyond that, it is a fusion o the two ideas of limited government and natural rights.  We had previously said that our most basic rights are gifts of our creator.  Further, we established that the founders believed that the way to protect those rights was to create a government of limited power.  As a matter of fact, Jefferson indicates in the Declaration of Independence that it is when a government fails to protect the rights of the people that the people’s right to alter or abolish their government becomes active.  The right to overthrow the government requires first that the government fail in protecting the rights of the people according to Jefferson.

So, follow the bouncing ball with me for a moment.  We are created by God, and in that act of creation, we have rights as a gift of God inherent in our very humanity.  We the People have gathered together into a civil and political union and created a government for the purpose of protecting those rights, and that we have even created a list of rules for the government to follow to further protect those rights, namely the Bill of Rights.

It is a great idea if you ask me.  Consider if you will, the first amendment: “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”  Notice, the words do not give rights to the people.  Instead, it assumes the rights are already there and tells the government “HANDS OFF!”  Over and over, like a puppy being trained to stop some negative behavior, the government is told in the Bill of Rights “NO!”

Sadly, that idea cramps the style of some politicians.  The founders drafted the Constitution and Bill of Rights so as to place limits on the government, not the people.  Sadly, even President Obama is one of these politicians.  In a 2001 interview on WBEZ radio in Chicago he stated that “the Constitution is a charter of negative liberties.”  We have already established that the founders wrote a Constitution to limit government power, so that means that he favors taking off the shackles that limit the government.  This belief is antithetical to what the founders of this nation set out to accomplish.  They understood, as Jefferson did, that “the natural progress of things is for liberty to yield, and government to gain ground.”

The Bill of Rights is based on a simple idea, the idea that we are born free.  If those ideas are placed in the right hands, they are the most powerful force that this planet can know.  The idea of a digital world with a computer in every home inspired Steve Jobs to change the world.  The idea of peace through victory led Winston Churchill to inspire a nation in the midst of the ravages of World War II.  It was the idea of a free people that led an extraordinary group of men to draft the Declaration of Independence, the Constitution and the Bill of Rights.  Ideas shape our world and alter our reality.

I ask you now, what will you do with this idea?  The idea of freedom and limited government should be at the core of all of our political activities.  Socially and politically, you now carry the torch ignited by men like George Mason, Thomas Jefferson, James Madison, George Washington and Benjamin Franklin.  Will you hide it, douse it or let this idea of ideas die out?  Or will you hold it aloft to light your way, shine forth and bring light to the world?

Thank you.