The Home of American Intellectual Conservatism — First Principles

March 24, 2019

Political Principle: Ordered Liberty; Chapter 5 from "The American Cause" by Russell Kirk

The American Polity

Some nations have order without justice or freedom; these we usually call tyrannies. Other nations have freedom—for a while—without justice or order; such conditions we call anarchy. The founders of the American Republic, equally detesting tyranny and anarchy, determined to establish an enduring political constitution that would recognize the claims of justice, order, and freedom, and that would allow no excessive demands upon the part of any one of these three principles. Such a state, in which interests are balanced and harmonized by good laws, Aristotle had called a “polity.” Our American polity is a regime of ordered liberty, designed to give justice and order and freedom all their due recognition and part. The founders of the Republic worked prudently with the materials they felt had been given to them by Providence: the American colonial experience of parliamentary government and local rights; the English legacy of common law and checks upon power; the Christian theories of natural law and natural rights; the classical ideal of a republic; and the Old Testament morality that was the fundamental educational discipline of eighteenth-century Americans. They indulged in no political fantasies. The chief philosophical explanations of their aims and methods are The Federalist Papers, written by Hamilton, Madison, and Jay, and A Defence of the Constitutions of Government of the United States, written by John Adams. Their enduring monument is the Constitution of the United States.

Contrast with French Revolution

In the French Revolution, which began fourteen years later than the American Revolution, the revolutionary leaders—at least at the climax of the revolutionary movement—paid little heed to the ancient principles of justice, order, and freedom. They were not Christians; and, though they admired the political forms of Greek and Roman days, they felt no respect for the political traditions of their own country. Little influenced by a reverence for the wisdom of their ancestors, therefore, the chief French revolutionaries set out to establish what they thought would be a completely rational and completely new political order, independent of Providence and historical experience. In place of the old ideals of justice, order, and freedom, they shouted a novel slogan: “Liberty, equality, fraternity!” In their brave new world, the French reformers felt confident, all men would be absolutely free, perfectly equal, and happy in social harmony. The duration of their dream was brief: fierce conspiracies and mass-executions gave the lie to their expected fraternity, a succession of cliques of intolerant politicians undid their expected equality, and the triumph of a dictator, Napoleon, put an end to the anarchic liberty they had celebrated. Having left Providence and historical experience and prudence out of their considerations, the French reformers passed speedily from the ineffectual monarchy of the Old Regime to the efficient tyranny of the Napoleonic Empire. The coming of Napoleon Bonaparte, indeed, was welcomed by the majority of the French; for though he ended freedom, he restored justice and order. And men cannot be content without justice and order.

The American Republic and its Constitution, in contrast, have endured with some amendment for more than two centuries. This remarkable permanence seems to be the product of the wisdom of the Republic's founders: they built upon the living rocks of justice, order, and freedom. Therefore it is worthwhile to examine what they understood by the terms justice, order, and freedom. By and large, the American cause today rests upon their understanding of the meaning of those great ideas; for, perhaps more than any other people in the modern world, we are devoted to our national political traditions and venerate the documents in which they are expressed.

“To Each His Own”

The American revolutionary leaders, and the framers of the Constitution, believed that true justice can be obtained through recognizing the legitimate claim of each man to the expression of his own talents and his own personality—so long as his expression of talents and personality does not infringe unduly upon the rights and contentment of other people. “To each his own” means that every man has the right to seek the fulfIllment of his own peculiar nature, to develop to the full the abilities which God has given him, within the bounds of charity and duty. Every man has the natural right to his own abilities and to what he has inherited from his forefathers. In the just state, the energetic man is protected in his right to the fruits of his endeavors; the contemplative man, in his right to study and leisure; the propertied man, in his rights of inheritance and bequest; the poor man, in his rights to decent treatment and peaceful existence; the religious man, in his right to worship; the craftsman, in his right to work. The just state, in short, will endeavor to ensure that no one shall take from another man what properly belongs to his personality, his station in life, and his material interests. The courts are arbiters when these claims seem to conflict. Further, no man shall be above the law; whatever a man's family, fame, wealth, or influence, he shall be expected to abide by the general rules of justice, as expressed in courts of law. The founders of the Republic were resolved that political and legal privilege—that is, exemption of certain powerful persons from the jurisdiction of many of the laws of the land, which then was practiced in nearly all the states of Europe—should not be endured in the United States of America. In America, justice should deal impartially with all claims; justice should be no respecter of persons, though justice should be the guardian of personal rights.

American Concept of Equality

These American statesmen, then, were convinced that men differ in character, talents, and needs. The function of justice is to assure to every man the rights which go with his particular character, talents, and needs. All men ought to be equal before the law; but the law is not intended to force upon them an artificial equality of condition. Justice does not exist in order to change men's natures; rather, justice's purpose is to help men fulfill the particular natures to which they were born. The founders of the Republic did not expect or wish that men ever would be equal in strength, cleverness, beauty, energy, wealth, eloquence, wisdom, or virtue. They did not want a society marked by any such dull uniformity of character. Such a society, in any event, would be impossible to create, they knew; and even were it possible, the result would be boredom and discontent for everyone in it. In one thing only ought men to be equal, here on earth: equally subject to the operation of just laws.

Jefferson, it is true, wrote in the Declaration of Independence “that all men are created equal.” But the members of the Continental Congress who subscribed to that Declaration, and probably Jefferson himself, understood by this phrase that all men have natural rights to the development of personality and to equal justice under the law. No American leader of that day supposed that the helpless new-born baby is free, in any literal sense; obviously an infant is not born free, literally, but for a long while is in a condition of the most servile dependence. People are born free only in the sense that they are born to the right to seek what suits their nature. Similarly, the leaders of the young Republic were not so impractical as to think that all men are equal in mind or body or character or inheritance or environment; it was even more obvious in the eighteenth century than now that people are created highly unequal in all these respects. What they understood by the word “equal” in their Declaration of Independence is that all men, regardless of worldly station, enjoy a natural right to equal treatment under the law of the land; no man is privileged by nature to be exempt from the operation of justice. Justice, then, meant to the founders of the Republic the impartial administration of law to secure to every man the things that are his own by nature and inheritance. And this understanding of the nature of justice has for the most part endured in American courts and American public opinion down to our day. Justice does not consist in forcing all people into an artificial and monotonous equality of worldly condition, through the power of the state; such a scheme would have seemed to the Republic's founders monstrously unjust. For the essence of justice is to assure by impartial adjudication that a man may keep whatever is rightfully his and pursue whatever his honest talents fit him for.

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