The Most Important Issue Not on the Ballot in November
by J. Kennerly Davis
Debating the origin of rights and freedoms. Image credit: Bing Image Creator
As our fall elections rapidly approach and we consider the differing positions taken on particular issues by the individual candidates competing for our votes, it is vitally important that we first carefully consider a fundamental question not on the ballot but tied closely to the deeper meaning of this and every election. It’s a deceptively simple question, but one that encompasses the essence of every significant policy issue that confronts our Commonwealth.
The question for us to ponder before we vote is, simply: Where do our rights come from?
The most basic decision that the members of every society must make is how to define the place of the individual in the society, and from there to determine the relationship of the individual to the group, the distribution of legitimate authority, and the system of government.
In any system of government, ultimate authority, or sovereignty, must be located somewhere in the system for the government to function. For most of recorded history, in most places, sovereignty has been located in anti-democratic authoritarian rulers supported by the dominant classes from which they emerged: monarchs and their nobles, military strongmen and their armed forces, party leaders and their ruling political parties.
In such political systems, the ruler and dominant class are seen as the embodiment of legitimate state power. Their exercise of sovereign authority is, to all intents and purposes, unchecked, unbalanced, and unaccountable. Individuals not of the dominant class are subordinate. Their rights are nothing more than malleable artifacts whose substance and tenure depend upon the arbitrary determinations and dispensations of the ruler and the dominant class. The economic and social status of subordinate individuals, their liberty, their very lives, are all contingent upon their maintaining good relations with the ruler and dominant class.
In 1776, our Founders turned this traditional concept of state sovereignty, and the relationship of the authoritarian ruler to a subordinate people, upside down. In Philadelphia, for the first time in history, a nation was founded on the proposition that the people themselves are sovereign.
Well-schooled in the teachings of Judeo-Christian theology and classical liberal philosophers, the Founders held that all persons are created possessing in equal measure certain natural God-given rights that, taken together, entitle each person to lead the life and pursue the happiness of his or her own choosing, free from state tyranny and limited only by the need to respect the right of others to do the same. For the first time, the rights of the people were understood to be inherent in their shared sacred humanity; not created by the ruler and the dominant political class but pre-existing both of those and the government.
The Founders explained that the purpose of the government they were creating, the only rightful purpose of any government, was to recognize, respect, and protect the pre-existing natural rights of the people. Faithful adherence to this purpose is the precondition of the government’s legitimacy and the people’s consent to its rule.
It’s all right there in the second paragraph of our Declaration of Independence – the heart and sole of our national experiment, the essence of American exceptionalism, the foundation of a government of the people, by the people, and for the people.
Despite the manifest blessings of the Founders’ legacy, as the 20th century began to unfold, certain politicians and intellectuals – Woodrow Wilson an embodiment of both – began to attack the principles of natural rights and popular sovereignty contained in the Declaration, and to attack the Constitution enacted in 1787 to protect and preserve those principles.
Wilson and others denounced the Declaration and Constitution as outdated relics of the past that dangerously undercut the ability of the government to deal efficiently with the challenges it faced in the new century. They claimed to have more “progressive” ideas for an updated form of government that could more effectively meet those challenges.
Wilson and his fellow progressives turned away from England and classical liberalism as sources of political inspiration. Instead, they turned to Imperial Germany and a Prussian model of consolidated administrative government largely unhindered by constitutional constraints. Impressed by the prerogatives and regimenting efficiency of a dominant German bureaucracy, the pacifying effect of the German welfare system, and the exhilarating implications for state power contained in German political philosophy, the progressives sought to create nothing less than a “new republic” for the modern era.
In their so-called new republic, the progressives replaced our revolutionary founding concept of inalienable natural rights with the age-old authoritarian concept of malleable “rights” that are created and then distributed and redistributed and extinguished by the government as needed to advance its ever-evolving policies, reward its supportive constituencies, and punish its opponents.
Progressive Supreme Court Justice Louis Brandeis captured the spirit of this new republic perfectly when he wrote in a 1921 opinion that the “rights of property and liberty of the individual must be remolded from time to time, to meet the changing needs of society.” It is clear that the self-proclaimed progressives undertook to implement a form of government that is more correctly understood to be regressive – indeed, counter-revolutionary – because of its clear rejection of the foundational principles of natural rights and popular sovereignty that defined our American Revolution.
The view that our rights are merely the malleable artifacts of government rulers is the core concept that continues to define and drive the progressives’ model of government and all their policies. Senator Tim Kaine made this crystal clear when, during a recent Senate hearing, he declared “The notion that rights don’t come from…the government – but come from the Creator – that’s what the Iranian government believes.” After conflating our Founders and the theocratic radicals in Tehran, Kaine went on the say, “The statement that our rights do not come from our laws, or our governments, is extremely troubling.” He further denounced the concept of inalienable rights as a “radical and dangerous notion.”
Senator Kaine has been widely and severely criticized for his attack on the founding principle of our democratic republic. Such criticism is well deserved, but we should also thank the Senator for highlighting the authoritarian philosophy that animates his party and for underscoring the high stakes of the coming elections.
There are many challenges that confront us as Virginians, and many particular issues of law and public policy that need to be debated and resolved by our elected officials. As we approach the fall elections and consider the candidates and their positions on the issues, we need, first and foremost, to ask each one of them to clearly state their position on the most fundamental political issue: Where do our rights come from?
Their answer to that question will tell us everything we need to know about how they view us and how they will approach particular issues as they exercise their responsibilities as elected officials privileged to represent the people of Virginia.
J. Kennerly Davis is a former Deputy Attorney General for the Commonwealth of Virginia
Republished with permission from Bacon’s Rebellion.
