[Salon] REMEMBERING WHAT THE FOUNDING FATHERS FEARED—-AND MANY TODAY EMBRACE



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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