Ben Franklin when asked to describe the goal of the Constitutional Convention said, “A Republic, if you can keep it.” The last five words are critical. For in the succeeding two hundred years the Republic has undergone shifts and dramatic changes. Surely the limited government envisioned by the founders does not resemble the government of today that by happenstance, pandering or addressing real and perceived needs is elephantine.
But perhaps the most significant challenge to a republican form of government is the liberal state that emphasizes rights as its critical feature. Rights tend to be inviolable; moreover, a privilege vouchsafed over several months morphs easily into a right.
Rent control in New York City, for example, proffered as a temporary measure to assist G.I.’s returning from World War II, was transmogrified into a right that doesn’t make economic sense and certainly has little application to the city 60 years after its introduction.
The liberal state is fond of finding and then defending rights the founders could not possibly have imagined. Reproductive rights, the right to healthcare, the right to marry a member of the same sex are clearly contemporary rights that come to mind.
The problem with newly created rights is that they take on a status like those in the Bill of Rights; they must be defended and applied as if the First Amendment. And there isn’t any end to their invention and metamorphosis from idea to privilege to right.
Rights are also universal; they apply to those who pay taxes and those who don’t; they apply to new immigrants and the old; they may even be applied to those who arrive on our shores illegally. Hence rights can fundamentally alter the character of a nation, even as we take pride in many rights (individual rights, property rights) as being essential for the continued qualities in our nation.
Republicanism is summarized in three words, “we the people.” Our Constitution does not refer to “we the states” or to “a polity.” The government presumably serves the will of the people and acts on the consent of the governed. Therefore, rights must be seen against a backdrop of consent. If the people are willing to abjure some rights in order to enhance security, that is their privilege.
Liberalism has so encroached on the essence of the republic that the courts have arrogated to themselves the right to make laws the Constitution earmarked for Congress. And this has occurred without much of an outcry from the public.
In my judgment the reason for the failure of the recent immigration bill is that the proposed legislation represented liberal overreaching. By suggesting people who violated American sovereignty should be rewarded with the rights of citizens struck those with a republican orientation as absurd. This was seen, rightly or wrongly, as the frivolous dissemination of rights.
The proliferation of rights is not accompanied by a devotion to duties. People assume rights are manufactured – as indeed they often are – and are served to the American people cost free. As a consequence, there is a natural constituency for rights proliferation and not one for a traditional republican form of government.
Yet there are many areas of public life where the consent of the governed should prevail. If the public is wary of radical Islam and its penchant for violence, must we say rights should be applied to radical Muslims and Muslims alike? If the people are unwilling to embrace guest workers who do not have any interest in being American – speaking our language, learning our customs and history and sacrificing for the nation – does it make sense to extend the rights of American citizens to these workers?
Clearly the tension between liberalism of John Stuart Mill and the republicanism of Jefferson is embedded in our history. This moment, in a sense, is not different from others. But I would contend we have tilted so far in a liberal direction, we have lost our way. It’s time to rebalance philosophical assumptions and restore consent of the governed into the national debate on public policy issues.