The Unkept Promise; R. Foley, Jr.

I. Promise The prologue to the American Revolution presents one stark aspect overwhelming all other facets: The human condition well fit the Hobbesian declamation of "short, solitary, nasty, and brutish." Ages forgotten struggled against the forces of nature and the depravity of hominoid brutes in an unceasing and ever losing battle against violence, starvation, inci vility, and death. Generations existed in the same fashion as their antecedents of centuries past: They suffered the same diseases and un pleasantries of a short and sorrowful life; they advanced in knowledge by toddler's steps, stumbling backward and eradicating gains al most as they were attained; in sum, the world conquered mankind and merely permitted it to exist, wallowing in poverty and pestilence. Weak shafts of light penetrated this bleak ex Mr. Foley, a partner in Schwabe, Williamson and Wyatt, practices law in Portland, Oregon.

He presented a version of this paper to the trustees and guests ofFEE at the May 1987 annual meeting, which cele brated the 200th anniversary of our Constitution. istence, testimony to the inherent worth of mankind. Candles from Grecian, Roman, and Saracenic glory partially illuminated the dark ness, only to be shortly snuffed. Our essential inquiry: whether the American experiment, of which our Constitution forms the centerpiece, merely constitutes one of these infrequent beams in the coldness of human history, or whether the Founding Fathers wrought some thing novel and enduring for all time and for all mankind. Surely the promise of 1787 was the represen tation of the latter. The revolution brought forth a new nation in a new world, inhabited and governed by men quite unlike their ancestors in outlook, although flawed with the identical frailty of all human creatures. The founders employed a distinct and radi cally different hypothesis of the worth and re sponsibility of each individual. Drawing from a century of incandescence generated by Locke, Montesquieu, Bacon, Hume, and Smith, the framers no longer viewed men as mere chattels of the divinely-endowed monarch or pawns of the blessed aristocracy. Rather, each individual possessed a worth, a value, a dignity of his own; he was endowed-and not by other men - with natural rights, rights which ought not to be traduced by his powerful mentors, neighbors, ecclesiastics, or kings.

Quite apart from the later Benthamite cal culus which demonstrated beyond cavil that better empirical results flow from a free so ciety, the architects of our Constitution recog nized the essential moral premises of unre strained creative human action. Of course, man's lot improves with the development and distribution of more and better goods, services, and ideas; more saliently, however, it consti tutes a moral imperative heretofore noted only transitorily that no man possesses the wisdom, the talent, and the moral privilege to choose for any other sentient being; indeed, to arrogate to oneself such an audacious function deprives the person compelled of essential humanity. This shocking declaration of individual lib erty, this unbridled assertion that each person ought to remain unlimited in the use of his cre ative and productive energy, this wholesome embrace of an emerging natural rights theory perched upon a moral base, called forth a unique view of the essence and function of the state. Before the grand experiment we now cel ebrate, all power resided in the state which dribbled droplets· of permission upon the heads of favored inhabitants. Naturally, what the state gave, the state could take back, as sanction for departure from enforced orthodoxy, as punish ment for real or imagined abuse, or for any other frivolous reason whatsoever.

With the advent of the United States, a new doctrine held forth, divining that all power re sided in the self-governing individual; only a few, limited, clear! y defined powers - those considered necessary to order society, to solve disputes, to deter aggression - were delegated to the government by the individual citizens. The concept of a free society thus embodied the elements of the moral private property order (necessarily flowing from the belief that free men must remain unconstrained in the produc tion, distribution, and trade of products and concepts) and a strictly limited government, a state which left a broad range of human action free from interference. Thus, the premise of individual liberty which undergirded both the Declaration of Indepen dence and our Constitution must be viewed against a wholly disparate backdrop of slavery and want. Virtually all ideological and empir ical precursors to the United States of America developed in a condition of poverty and back wardness and employed cruelty and tyranny as the dominant tool of governance.

Contrast the American experiment: Indi vidual citizens were to remain free from most restrictions upon their creative endeavors; each 365 man possessed dignity and worth; every person enjoyed a broad ambit of choice and tolerance; and, the concept of limited government sought to assure the open texture of society, free from the bars of prior restraint. The premise became a promise, because no objective observer would deny the existence of imperfections in this bold new structure-after all, the incidents of human slavery and indenture, the denial of certain property rights to women, the encroach ments wrought by commercial licensure and taxation, the development of internal improve ment programs, among other examples too nu merous to mention, betray the inaccuracy of any assumption that Dr. Franklin and his col leagues concocted a perfect solution in 1787. No Guarantee of Success The promise of liberty is a guarantee of an open-textured society, of opportunity un chained from forceful human barriers. It does not assure success in any particular venture, or a felicitous outcome for all individuals in the state, or a happy and prosperous life. No system of governance can make such a promise without engaging in the most disgusting fraud.

The rhapsody of a free society sounds in the potential improvement of the human condition by the concatenation of results achieved by myriad actors no longer impeded by the harsh codes of human minds. If each individual pos sesses merit, and if observation teaches that all of us display incurable character flaws, it follows that no single citizen or group ought to intercede with force in any other man's quest, no matter if the journey or the path seem abys mally foolish to all onlookers. The founders sought to fulfill the premise and the promise by construction of an institu tion of government quite unlike any forerunner. They recognized that such a structure must ac commodate the curious duality of mankind our light and sinister aspects-in order to achieve the grail of individual liberty. The del egates read history. They understood Lord Acton's dictum ("power tends to corrupt; and absolute power corrupts absolutely") before its utterance. They perceived that those few glimmers in human history arose in periods of relative freedom, times of relative diminution 366 THE FREEMAN. OCTOBER 1987 of state power. And, they learned sadly that each such lantern had been extinguished all too soon.

Observation of human proclivity and study of human action afforded the framers-a most extraordinary collection of men-ample ex amples of good intentions gone wrong. A fun damental religious faith and scrupulosity leav ened their historical perceptions with essential moral tenets necessary to the development of their imaginative endeavor, a truly free and tol erant society, one not wedded to the redundant errors of the past. The promise of the open so ciety they envisioned could be accomplished only if the sinister tendencies residing in each human being might be quelled in a fashion which solely restrained destructive behavior, leaving the greater creative and productive power unhindered. Positing these principles, the founders set about the business of the day in 1787. They soon discarded the initial suggestion to repair the Articles of Confederation. Instead, theyap plied their efforts to a new edifice, one de signed to accomplish their vision. Precedent demonstrated that the greatest threat to personal liberty dwelt in public coercion, that legal fic tion denoted "government." Purportedly con ceived from a Rule of Necessity, this monopoly of compulsion surrounded by trappings of jur istic propriety exhibited an unalterable ten dency to demolish freedom and promote tyr anny, often accompanied by paeans and plati tudes of the highest order. Thus, the draftsmen applied their considerable talents to assure-to the best of man's limited ability-that no such coercive edicts would restrain the creative ac tivities of the inhabitants of the new nation, all the while cognizant of the second greatest threat to true liberty, the forceful and fraudu lent behavior of other men not carried out under the aegis of the state.

Our forefathers felt compelled to deal with these twin turbines of tyranny, collective evil, and individual malevolence. Since deterrence and punishment of the latter formed the sine qua non of the state, and was assumed to con stitute the necessary element of good govern ment, the delegates spent considerable time during convention drafting sessions and debate attentive to the former and greater danger. To fulfill the promise of a government dedicated to the preservation of liberty, a state foreshad owed by the Jeffersonian Declaration a decade earlier, the founders designed a constitutional republic, the exemplar of the classic form of a limited government. A Limited Government The grand norm contained four major lirri iting concepts, each in its discrete manner con trived to reduce the common human propensity to seize and exercise power over the lives and destinies of others. First, the Constitution di vided governmental powers between the Fed eral republic and its constituent states; this divi sion of powers rested upon the doctrine of sub sidiarity which recognized that propinquity renders a coercive monopoly less subject to abuse. The thirteen states displayed common traits, including disparate but similar constitu tional guarantees of individual rights; those protections remained in place with the creation of the Federal union. Second, the delegates limited the powers ceded by the inhabitants and the states to the general government. Those powers granted were written in the plain lan guage of the day, and all unspecified powers were retained by the lesser states or their indi vidual citizens. Third, the few powers granted to the national government were separated and diffused among legislative, executive and judi cial branches, each performing essential func tions, and each exercising controls (" checks and balances") over the competitors. The un happy English and French histories of unitary state excesses weighed heavily upon the draftsmen. Fourth, as an afterthought, and as an inducement to adoption, the framers added a specific Bill of Rights, further declaiming the rights of individual citizens to be unfettered by avaricious and smothering government.

In essence, as Dr. Franklin advised his en treator, the convention brought forth a republic. The draftsmen of 1787 were scholars. Certain attributes inhered in a design termed "a repub lican form of government": a notion of limited governmental powers, operating under a written instrument, governed by selected repre sentatives chosen for their wisdom, discretion, and foresight, and not wholly unlike the judges of the Old Covenant. Most assuredly, these chosen representatives were expected to govern soberly and civilly, unswayed by transient pas sions of envy, greed, jealousy, and covetous ness. Thus, in September of 1787, the convention provided this fledgling nation with a promise of a free society, a republican form of government subject to retention or discard. II. Breach It has become commonplace to assign a spe cific date or event as the genesis of the down fall of the American Republic. Albert Jay Nock chose the year of his birth (and, incidentally, the natal year of Lenin and Roscoe Pound), 1870; for others, the Wilsonian Revolution (Federal Reserve Act, 16th Amendment, entry into World War I) fills the bill; still others se lect the advent of the New Deal, Camelot, Vietnam, Watergate, or even hearken back to Shays' Rebellion or Marbury v. Madison. In truth, the breach pre-existed in both the premise and the promise, lending prescience to Franklin's strange answer.

The quintessential element of a constitutional republic for a liberal society exists in the ac countability of the individual citizen. Self-gov ernment demands personal responsibility, toler ance for broad differences in ideas and actions, willingness to accept untoward consequences of ill-advised conduct. Democracy differs not at all from mob-rule; in 1841, Charles Mackay [Extraordinary Popular Delusions and the Madness of Crowds] collected myriad ex amples of wrongheadedness, most of which (e.g., Tulipmania, the South-Sea Bubble, the Mississippi Scheme) resided in the collective memory of 1787. Simply put, the mass is nearly always wrong; aggregate thought and action magnify mistakes and drown out innova tion. A simple voting majority in a democracy may employ the ballot to rape, pillage, or op press the minority with juridical impunity. Cognizance of these evils of human behavior impelled the draftsmen to construct a repub lican government in an attempt to shield the dissenter from the excesses of majoritarianism.

Limited powers, divided powers, separated powers, written rights, all coalesce in a noble THE UNKEPT PROMISE 367 undertaking of liberty-and all depended upon individual accountability, the amenability of each man to accept the consequences of his ac tions and to bridle the common desire to shunt unexpected or unhappy effects onto the un willing shoulders of his neighbor. The promise did not die aborning. Indeed, it survives today in attenuated fashion. Observers from Alexis de Tocqueville, to Rose Wilder Lane, to Henry Grady Weaver noted the aston ishing outpouring of creative energy released in the humane economy protected by the republic. Liberty improves behavior as well as produc tion. Thus, the early years of the republic wit nessed stupendous accomplishments in eradica tion of disease and increase in material choice; in addition, greater moral harmony ensued, as men and women, left to their own devices, learned how to make better choices, choices no longer dictated by the grinding poverty and tyr anny of the past.

The Constitution created no Golden Age of perfect freedom, no light that somehow failed. Intolerance, greed, envy, and coercion rode across the American scene as surely as the fa bled four horsemen of the Apocalypse. State and national governments did intrude into the creative realm on occasion (e.g., commercial barriers, internal improvements, post roads) and powermongers did secure subsidies and special privileges to the detriment of consumers and competitors. Nonetheless, the premise reined in these riders, as society in general re mained committed to a belief in the felicity of human freedom. Cursory perception discerns significant differences in direction and content between Dickens' "best of times, worst of times" in the Old World, and the enlightened new nation. Just as patently, however, we have not kept the faith with Franklin. The breach of promise occurred not with sudden swiftness. Rather, it took place in trundling bits and pieces. The woodsman's axe from without melded with the rot within to fell the oak of the republic. We no longer read; hence, we no longer read history.

We refuse to make fine distinctions; hence, we fell prey to sirens and panderers. We lack con sistency; hence, we created intolerable excep tions for ourselves at the expense of others. We believe responsibility imposes too great a 368 THE FREEMAN. OCTOBER 1987 burden; hence, we accept second place in moral behavior and thrust our load upon another human being. In short, we acted as men always have acted, in an amazing parallel to, say, Rome, and we reaped the consequences. Today's Alexander Pope will deny the breach. Today's Voltaire must set him aright. No effective limit on government exists; cit izens act creatively only on privilege subject to whimsical revocation or, more often, merely by virtue of the innate clumsiness of bureaucracy. Separation of powers? Nonsense! An inconsis tent and unwelcome judiciary acts as the Privy Council of old, while the Congress passes out favors and limits market entry more artfully than any French assembly; meanwhile, the ex ecutive rambles on its merry way, issuing edicts in the forms of unchecked regulations and executive orders reminiscent of the mon archs of days gone by. Division of powers re sembles a chimera; the local governments, de nuded of any real authority, cluster at the Fed eral fount, playing pressure group politics as surely as any labor union, business association, or other collection of brigands. Brick by brick, stone by stone, the republic has collapsed and, in its place, a "democracy," more like a vul ture than a phoenix, has risen.

III. Atonement Historical criticism demonstrates a singular fact: Human assessment and prediction is never quite accurate, and the closer one stands to an event, the less likely he is to discern its signifi cance correctly. Thus, those who foretell a de scent into a Dark Age for the United States of today are probably quite as wrong as a Mr. Mi cawber heralding a brave new world. In addi tion, mankind displays an innate ability to avoid foolish restrictions, an ability expanded by a heritage of freedom. For these reasons, a free society manifests a considerable resiliency, a survival in kind even after decades of dark oppression. Hence, hope remains that the breach may be cured and the promise of a con stitutional republic resurrected. How does this nation recapture the promise of freedom? Not with smug platitudes, vacant cliches, and muddled thinking. Not with con duct separated from integrity and principle. Not with a continued resolve to ignore the law of causal consequence. Not with the devotion to inept tutors and teachers. Certainly not with an eye devoid of historical fact. We have lost our republic simply because we have lost sight of the premise of the promise: Liberty affords the greatest opportunity for human fulfillment, and the essential cornerstone of a free society is a unique commitment by the vast majority of all citizens to the principle of individual responsi bility.

The vision of freedom is clear, its virtues manifest and unassailable. Perversely, stalking the ideal proves exceedingly difficult; as ob served, even the candles of relative liberty in eons past have snuffed quickly. The following redirections should help us find our way if we, as a nation, truly wish to reapproach the benign condition devised to us 200 years ago. First, recapture the wraith of liberty. Under stand, with Isaiah Berlin, the connotations of positive and negative liberty. Assign only proper functions to the state-maintenance of order, settlement of insoluble disputes, preven tion of aggression; remove from government all chores which render it a monitor of nonaggres sive behavior or a builder of societal edifices. Release each man from all bonds upon his cre ativity; restrain only his destructive and aggres sive behavior. Recognize the indivisibility of liberty in all disciplines, and cast aside such vacuous distinctions as "commercial" versus "noncommercial" speech and "human rights" versus "property rights"; permit the private property order, the market, to exist and satisfy the subjective values of each voting par ticipant in that dollar democracy. Rediscover the rational, empirical, and moral foundations of the free society.

Second, observe the necessary limits upon a state and upon the outcome attainable by any form of government. To reiterate: Freedom provides an open texture without prior restraint; it does not guarantee felicity. Many state temp tresses proffer the seduction of happiness, order, security, equity; such enticements de fraud those who listen; no form of government could fulfill such a promise, and any who heed the siren's song return to muck and mire. The state consists solely of destructive power; it cannot create, only destroy, and it tends to cause unanticipated and unpleasant results, most likely because men of power fail to un derstand simple rules of causality, morality, and human activity. Third, comprehend the role of individual ac countability in a republican order. Remember: Freedom necessarily includes the freedom to fail. Choice involves selection from a range of alternatives. Finite human creatures may choose beneficially, or they may err signifi cantly, or their pick may rest somewhere along the continuum between merit and detriment.

Further, the range of effects, good or ill, may not become readily ascertainable. Freedom compels each choosing actor to accept all con sequences of his selection; it does not permit him to toss out his bad choices, to ameliorate the detrimental effects thereof by compelling another individual to accept those unintended or unhappy results, in whole or in part. A so ciety which allows some participants to retain only beneficial results and to thrust the discards upon their neighbors is not free; it operates in the same fashion as the mandate state of the past, where, in George Orwell's prophetic An imal Farm, "some pigs are more equal than others. " The compelled recipient of another's bad choice loses an important aspect of his very humanity; only a poltroon would term him "free. " Personal responsibility forms the touchstone of freedom. The delegates understood that each man's liberty depends upon that equal and re ciprocal right residing in every other indi vidual. If A employs the law to shunt the burden of his bad choices unto the unwilling shoulders of B, B loses his freedom to that ex tent, no matter how moderate and polite A's motives. A also loses some of his liberty (albeit by his own choice) and humanity, for tyranny requires unproductive effort to keep the slaves in line. Also, in the democracy of the day, B may seize the juridical apparatus in order to get even or get ahead. The result: Frederic Bas tiat's circle of pickpockets, each mulcting the other.

It requires no small arrogance to use such harsh words in our circumstances. Educators, newsmen, politicians and preachers lull us into a somnolent mirage: Live for the day, for "in the long run we are all dead"; alchemy lives THE UNKEPT PROMISE 369 and dross deficits become universal benefits; I possess rights, you owe duties; freedom and subsidy for me but limited market entry and un wholesome regulation for you, because of "our special circumstances"; the market failed, and in its stead we have erected a humane society; freedom is fine in its place, but we must sustain the arts (build a safety net, ensure competition, enforce orthodox behavior, or any of thousands of droll substitutes). A litany of abuse of our Constitution by those seeking special privilege demonstrates the distance we have traveled from the conven tion of 1787. Every inroad into human cre ativity displaces more brick and mortar from the edifice of constitutional republic. Every usurpation of power by the state weakens the structure and portends its collapse. Forget mo tives; assume that each breach takes place with the sweetest and most innocent of intention.

Breach occurs, no matter the design. Each one of us harbors favorite ends, the product of our subjective value system first de scribed by Carl Menger almost a century after Franklin's comment. Propriety orders each in dividual to support his own charity, to further his own interest, to improve his own position by trading his produce in the marketplace, and to seek his own destiny, all without compelling others to join in his quest. Instead of this ideal, permitted by a republic of limited, diffused, and separated powers, we have bowed to our envy, apathy, and inconsistency and have re treated from any semblance of personal respon sibility. And as a result, we have substituted a grab bag for a market, and have become a na tion of petty thieves and dictators. Atonement requires recognition of our error, resolve to correct our ways, and advance towards the liberal society bequeathed to us 200 years ago. D 370 More Collectivist Cliches by Philip Smith I n her recent trip to the Soviet Union, British Prime Minister Margaret Thatcher challenged Mikhail Gorbachev to defend Soviet human rights policy. Gorbachev replied that when Western leaders were ready to dis cuss poverty, unemployment, and homeless ness in their countries, he would address human rights in the Soviet Union. This is a typ ical Soviet response, designed to confuse the issue and shift the blame once again to the capi talists.