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.