REMEMBERING WHAT THE FOUNDING FATHERS FEARED—-AND MANY TODAY EMBRACE
By
Allan C. Brownfeld
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We
hear much discussion at the present time about whether the president of
the United States is, in effect, “immune” to prosecution for violating
the law, whether the president is, in effect, above the law. The
current debate over this subject shows us how far we have come from
understanding the political philosophy which motivated the Founding
Fathers to make a Revolution and write a Constitution, which severely
limited government power. Sadly, we teach so little of our history in
the schools that many Americans are unaware of the values which
motivated the creation of the nation.
It
was the fear of total government which caused the leaders of colonial
America to rebel against the arbitrary rule of King George 111. They
would be surprised to see the president of the United States say on
March 14, 2019 that, “I could stand in the middle of Fifth Avenue and
shoot somebody, and wouldn’t lose any voters.” They would be equally
surprised to hear William Congovoy, a personal attorney for Donald
Trump, tell a court that no legal action could be taken against the
president if he did, in fact, kill someone on Fifth Avenue—-or anyplace
else. This notion that a president is, somehow, above the law, never
entered the minds of the framers of the Constitution.
In
the Constitution, they tried their best to construct a form of
government which, through a series of checks and balances and a clear
division of powers, would protect the individual. Yet, the Founding
Fathers would not be surprised to see the many limitations on individual
freedom which have come into existence. In a letter to Edward
Carrington, Thomas Jefferson wrote that, 🥇”The
natural progress of things is for liberty to yield and government to
gain ground.” He noted that, “One of the most profound preferences in
human nature is for satisfying one’s needs and desires with the least
possible exertion; for appropriating wealth produced by the labor of
others , rather than producing it by one’s own labor…the stronger and
more centralized the government, the safer would be the guarantee of
such monopolies; in other words, the stronger the government, the
weaker the producer, the less consideration need be given him and the
more might be taken away from him.”
That
government should be clearly limited and that power is a corrupting
force was the essential perception held by the men who made the nation.
In The Federalist Papers, James Madison declared: “It may be a
reflection on human nature that such devices should be necessary to
control the abuses of the government. But what is government itself but
the greatest of all reflections on human nature? If men were angels,
no government would be necessary. If angels were to govern men, neither
external nor internal controls on government would be necessary. In
framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to
control the governed, and in the next place, oblige it to control
itself.”
Those who
created the new nation were not utopians. They understood man’s nature.
They attempted to form a government which was consistent with, not
contrary to, that nature. Alexander Hamilton pointed out that, “Here we
have already seen enough of the fallacy and extravagance of those idle
theories which have amused us with promises of an exemption from the
imperfections, weaknesses, and evils incident to society in every
shape. Is it not time to awake from the deceitful dream of a golden
age, and to adopt as a practical maxim for the direction of our
political conduct that we, as well as the other inhabitants of the
globe, are yet remote from the happy empire of perfect wisdom and
perfect virtue?”
Today,
many people who call themselves “conservative” know so little of our
history that they really are not familiar with what it is they mean to
conserve. Anyone who thinks that any elected leader is, somehow, above
the law, should become familiar with the tradition the framers of the
Constitution sought to embrace.
Consider Magna Carta, the royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on
15 June 1215. For centuries Magna Carta has stood for the principle
that no man is above the law, even a king. It created checks to
restrain the king whenever he failed to uphold the terms of the
charter. Chapter 61 of King John’s Magna Carta stipulates that 25
barons should be selected to ensure that the king upholds all of the
provisions of the charter. When the king is in violation, the barons
have the authority to seize the king’s properties by military force—-or
“destrain” him —-until he complies.
This
made Magna Carta a symbol of the supremacy of the law over the will of
the king. There was an understanding that an act of the king or one of
his agents that violated the terms of the charter was void and in the
words Edward’s 1297 confirmation of the Charter “should be undone and
Holden for naught.” For the framers of the U.S.Constitution, the checks
and balances that operated between the three branches of government
were a means to prevent any single branch of the government from
governing capriciously.
Fully
aware of the centuries of efforts in England to limit the power of the
king, and of government, the American Revolution came about because the
King of England was violating the basic rights of the American
colonies. The leaders of the Revolution had tried to learn something
from history. John Adams made the point that, “Whoever would found a
state and make proper laws for the government of it must presume that
all men are bad by nature. We may appeal to every page of history we
have hitherto turned over, for proofs irrefragable, that the people,
when they have been unchecked, have been as unjust, tyrannical, brutal,
barbarous and cruel as any king or senate possessed of uncontrollable
power…All projects of government, formed upon a supposition of continued
vigilance , sagacity and virtue, firmness of the people when possessed
of the exercise of supreme power, are cheats and delusions.”
Adams
concludes that, “The fundamental article of my political creed is that
despotism, or unlimited sovereignty, or absolute power, is the same in a
majority of a popular assembly, an aristocratical council, an
oligarchical junto, and a single emperor. Equally bloody, arbitrary,
cruel, and in every respect diabolical.”
If
we taught our history more carefully, its lessons might be learned by
more Americans. For men and women to call themselves “conservative”
when they have little understanding of the values they seek to conserve,
leads many to go astray. This is particularly true of those who
advance the view that a president, somehow, can be above the law and
“immune” to prosecution if he violates it. That may be true in a
society with a different legal tradition—-not one that goes back to
Magna Carta in 1215.
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