Essay 23: Freedom of the Press in the United States (Vol. 1 Pt. 2 Ch. 3) of Democracy in America by Alexis De Tocqueville

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Guest Essayist: George Landrith

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Essay Read by Constituting America Founder, Actress Janine Turner

 

Freedom of the Press in the United States
By George Landrith, President, Frontiers of Freedom Institute

Our Founding Fathers saw freedom of the press as a foundational element of being a free and sovereign people. They had seen Redcoats arrest writers and destroy printing presses used to publish papers that were critical of Parliament and the Crown. So they made sure that our First Amendment specifically prohibited the government from abridging the freedom of the press and of speech.

De Tocqueville, a Frenchmen, came to study and analyze democracy in America and what made it work. His seminal work was the book – Democracy in America which he published in 1835. Not surprisingly, it includes an extensive discussion of freedom of the press.

De Tocqueville acknowledged that freedom of the press might be abused at times, but he also understood that freedom of the press, even with its imperfections, prevents great evils of abusive government power used to control and manipulate the people. He grasped that a choice between government censorship and a free press was actually a choice between servitude and independence. And like our Founders, De Tocqueville came down on the side of independence and individual liberty.

One of De Tocqueville’s observations was that in France, the newspapers were highly centralized whereas in America newspapers were dispersed, numerous and local. In America, nearly anyone could start their own newspaper or publication and could argue for the proposals or solutions that he or she thought best. Because of this freedom of the press, political information was widely available throughout the entire nation and covered many different perspectives. Thus, the American public was able to debate and evaluate the various political issues and in many cases come to a national consensus after a robust national debate. The wide array of newspapers and publications that enjoyed the freedom of the press played an important part in this national debate.

Among a free and sovereign people, determining what is true is our job. And we need a full spectrum of information and a robust debate to help us determine what is truth versus what is misinformation. The First Amendment’s free speech and free press protections are the best way to be sure we can decipher fact from fiction and truth from lies. Censorship has proven over hundreds of years to be a poor method for arriving at truth. Our founder’s believed this and interestingly, De Tocqueville came to a similar conclusion.

A brief review or comparison of societies across the globe throughout history reveals a great deal. Every totalitarian dictator in modern history has used censorship to empower themselves and to control and subjugate the masses. No dictator in modern history has protected the right of his political adversaries to express their views. Instead, the expression of dissent is seen as an act of treason and merely disagreeing with those in power can result in punishment.

As an inspired break from this trend of using censorship to control the masses, our Founders guaranteed that we could express our dissent and we could even peaceably assemble with the express purpose of stating our disagreement with the government’s actions.

Both our Founders and De Tocqueville wisely understood that we cannot hope to be a free and prosperous people if freedom of speech and the press is only allowed if the content is approved of by those in positions of government power. And we should never base our approval on the concept of a free press on whether we agree with the content.

I am confronted regularly with ideas and content that I believe to be wrong-headed, but its value is that it facilitates a robust public debate and that debate is an important foundational element of our nation’s freedom and strength. Even if I strongly disagree with the writer’s perspective, the answer is to honestly and fairly critique their argument and explain its errors and provide a better option. But it isn’t helpful to seek to silence them simply because we believe them to be wrong.

Another Frenchman, Voltaire, was quoted by his biographer, Evelyn Beatrice Hall, as having said, “I disapprove of what you say, but I will defend to the death your right to say it.” This is very much inline with the views of our Founders and De Tocqueville.

If we believe in freedom of the press only for those with whom we agree, then we don’t really believe in freedom of the press. Freedom of the press plays a fundamental role in a self-governing society where the people enjoy freedom. If we allow freedom of speech or the press to be eroded, the foundations of our liberty will also be eroded. So being pro-freedom of the press is simply being for American foundations of liberty and against government with totalitarian instincts. We can thank De Tocqueville for his keen powers of observation and analysis in Democracy in America.

George Landrith is the President of Frontiers of Freedom Institute – a public policy think tank devoted to promoting freedom, the Constitution, the rule of law, a strong national defense, free markets, and individual liberty. Mr. Landrith is a graduate of the University of Virginia School of Law, where he was the Business Editor of the Virginia Journal of Law and Politics. He is admitted to the bar in Virginia and California and is also a member of the United States Supreme Court bar. As an adjunct professor at the George Mason School of Law, he taught constitutional law and appellate advocacy.

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Principle of Freedom of Association, Undissolved and Unweakened, Either to Associate or Not, and Neither under Coercion nor Force

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Guest Essayist: George Landrith

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

The Bill of Rights doesn’t grant or create rights, but it does outline and protect rights. Our nation’s Founders believed that rights were given to us by our Creator. But they also believed that the proper role of government was to protect God-given rights. The freedom of association is a fundamental right of a free people. The First Amendment lays out the basis for the freedom of association — which simply means we have the right to associate with like-minded people, if we choose to.

The First Amendment explicitly protects religious freedom, freedom of speech and of the press, the right to assemble peacefully, and to petition the government to remedy injustice. While the phrase “freedom of association” does not appear in the United States Constitution, the right is wrapped up in the ideas of freedom of speech, the right to peacefully assemble, and the right to petition our government as well as the Due Process Clause of the Fourteenth Amendment.

It is important to remember that the Bill of Rights was never intended to list every God-given right that we have. The Ninth Amendment explicitly states this point — “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Likewise, in some ways the Bill of Rights is more a list of limits on the power of government than it is a list of rights. For example, the First Amendment states “Congress shall make no law ….” The Second Amendment says that the right of the people “shall not be infringed.” The Fourth Amendment says that “the right of the people … shall not be violated….” The Eighth Amendment prohibits government from imposing cruel and unusual punishments and excessive bail and fines.

If the Bill of Rights had been intended by our Founders to be a complete and comprehensive list of every God-given right that we had, it would have been much, much longer. The issues raised in the Bill of Rights were things that the Founders had experience with. They had seen the British crown mandate religious practices, limit speech, destroy presses that published disfavored ideas, and try to confiscate American guns. They had also seen Redcoats terrorize Americans, searching and destroying their homes and businesses without due process. They had also seen throughout history a number of abuses by other overbearing and unjust governments. So the Bill of Rights was only a partial listing of the rights that history had taught them were most likely to be abridged by a tyrannical government.

America’s Founders did speak specifically of the freedom of association. Samuel Adams was an ardent patriot, an influential leader of the movement for American Independence, and a cousin of John Adams. In a letter dated February 12, 1779, to James Warren — a fellow advocate for American independence and a Major General in George Washington’s Continental Army — Sam Adams wrote “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles and Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.”

It makes perfect sense that America’s Founders would see the freedom of association as foundational to a free society. They had gathered together and worked together to promote American independence. And the British Crown had attempted to make those associations a criminal activity. America’s Founders understood that they would have to associate and work with other Americans who shared their desire for independence. The British attempt to deny them the right to associate with like-minded Americans was simply an attempt to silence them and prevent them from petitioning the government for redress of their grievances. And only after years of presenting their grievances and being entirely rebuffed did they finally decide to declare their independence.

A logical extension of the rights of free speech and the right to peacefully assemble is the freedom of association. So while the actual words “freedom of association” do not appear in our Bill of Rights, the principle of freedom of association is clearly intended by our Founders and the United States Constitution. If you only have the freedom of speech as an individual, but cannot align yourself with others who share your views, that would give government the power to limit your ability to effectively speak your mind or petition the government.

Likewise, freedom of association includes the right for a group or association to establish its own rules for governing the internal affairs of the group. Imagine if government could regulate political parties or issues-based groups and how they operate. If government had this power it could effectively stifle a political group’s ability to petition the government or to speak out on policies that it supports or opposes.

Freedom of association also includes the freedom to not associate. An example of unwanted association is when a group tries to force employees to contribute to spending on ideological or political issues that employees may disagree with. The point is that government should not be requiring people to associate or preventing them from associating. In a free society, people get to decide what groups they agree with and which ones they disagree with and to either associate or not to associate based on their own determination — not government mandates.

We have a wide variety of possible associations — family, friends, neighbors, schools, the workplace, clubs, political parties, issue-based groups, etc. Not all are voluntary — for example, we are typically born into a family, we don’t choose the family we belong to. But once we become adults, we do choose how closely we want to align with and associate with our family. Likewise, young children don’t really choose to attend school or even a particular class.

But by the time we are adults, our associations are by choice — the church we go to or don’t go to, the job that we choose to pursue, and the clubs or organizations that we join or support. In a free society, government ought not be dictating what friendships, memberships, or groups we must maintain or support, and alternatively those which we must avoid or spurn. And government should not impose rules upon groups which discourage membership or punish those who align with the group.

In 1958, in NAACP v. Alabama, the Supreme Court unanimously held that the freedom to associate was part and parcel of free speech and peaceable assembly and that it also flowed from the Due Process Clause of the Fourteenth Amendment. The case involved the State of Alabama trying to deny the NAACP the right to operate within the state unless the organization fully disclosed its membership and donor lists.

The NAACP was concerned that such disclosure could be used to harass its members and would significantly limit its ability to align with Americans who supported civil rights and equal rights for all citizens. The U.S. Supreme Court unanimously held that the freedom to associate was part of the ability to engage in free speech and to peacefully assemble and that advancing your beliefs through association with like-minded people was an inseparable part of the Bill of Rights and the Due Process Clause of the Fourteenth Amendment.

Freedom of association is part of American life since the nation’s earliest days. We even associate with other Americans via social media. It is instructive that totalitarian regimes like North Korea, China and Iran outlaw free association. If you’re spotted visiting or dining with the wrong people, these regimes will punish you. If you attend religious services, or have friends who attend such services or have friends who are known to support reforms, you will be punished.

Even China’s social credit program is designed to enforce a mechanism that requires its populace to maintain only those relationships that are approved of by the government. No free society can tolerate a government that believes it has the power or authority to dictate associations in this fashion.

America’s Founders wisely understood that a free people must have the right to think for themselves, to speak freely, to petition their government without reprisals, to create associations to further their beliefs and leverage their speech, and to work individually or in association with others for policy reforms. The nation of America has been blessed that its Founders recognized this important fundamental right of freedom of association.

If America hopes to continue to be a free people, then we must continue to embrace and defend free speech, freedom of the press, freedom of conscience, the right to petition the government and the freedom of association. These freedoms are foundational elements of self-determination.

George Landrith is the President of Frontiers of Freedom.

 

 

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Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men

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Guest Essayist: George Landrith
Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The Rule of Law comprises a number of important legal doctrines designed to make our governmental system and our society more just and fair. It starts with the idea that we are all equal before the law and accountable to the same laws. But it also includes the concept that those laws should be made in public and not in secret; that the law should be evenly applied and not selectively applied, that all laws must be applied prospectively — meaning a law cannot punish behavior that occurred before the law’s existence; that government power cannot be exercised arbitrarily or capriciously, and that we should all have access to due process and an independent and fair-minded decision maker before our life, liberty or property can be taken from us.

For most of human history, most people have been ruled by individuals who had almost unquestioned power. For example, for much of Europe’s history, it was ruled by kings, who claimed “the divine right of kings” – meaning that no one on earth could question or challenge their rule. Such a ruler could imprison those he or she didn’t like or found annoying simply on a whim. And they had power to make laws that would be applied solely to those they didn’t like or had some grievance with.

Magna Carta officially ended the “Divine Right of Kings” by placing very modest limits on the power of the king. But modest limits on the arbitrary rule of men doesn’t qualify as the Rule of Law.

Fortunately, America’s Founders saw the Rule of Law as a foundational element of the society and nation that they sought to build. Thomas Paine in his seminal work, Common Sense, wrote that “in America, the law is King…” — meaning that there would be no king to rule over Americans. The law, as an impartial standard, would govern Americans.

Part of our national heritage in the Rule of Law means that we ought not care whether we like or dislike the accused, or whether we agree with the politics of the accused. We ought to be concerned only about the law and its equal and fair application. The Rule of Law is a major check against the abuses of government.

Soviet dictator Joseph Stalin once described his totalitarian view of the law as — “show me the man, and I’ll find the crime.” That is obviously not the Rule of Law. That is a prime example of the arbitrary and capricious rule of man.

While America has been an example to the entire world of the Rule of Law, it has not always been perfect in its application. But our commitment to the Rule of Law is noteworthy all over the globe and it has helped to make us “the land of the free and the home of the brave.”

America cannot survive as a beacon of hope and a land of freedom and opportunity for all if the Rule of Law is sacrificed upon the alter of political expediency. Americans of all political stripes must demand that the government play by the rules, live within the limitations placed upon it by our United States Constitution, and honor and uphold the principles of the Rule of Law.

One informal test that can help us judge the relative health of the Rule of Law in our nation is: does the government treat us like subjects or citizens?

Sir Thomas More lived from 1478 to 1535 AD and was an English lawyer, judge, and author. He was a strong and heroic advocate of the Rule of Law. In 1535, More did not attend the coronation of King Henry VIII’s latest wife, Anne Boleyn as Queen. Not attending the coronation was not an act of treason and, in a letter, More had wished the King and his new bride much happiness. And while most of the nation had not attended, More’s absence angered the King because of his reputation and influence.

After a number of failed attempts to punish More for not attending the coronation, the King came up with a plan to entrap More. He demanded that More sign a statement that King Henry was the head of both the nation of England and the Church of England. More had made no statements against the King’s authority, but he was unwilling to sign such a statement because it required him to repudiate his Catholic faith.

More made it clear to the King that he was not refusing to sign because he challenged the King’s authority. He simply was unwilling to repudiate his faith. But this did not matter; the King had him arrested and imprisoned in the Tower of London and eventually executed for treason.

A Man for All Seasons is a play and movie based upon Sir Thomas More’s life. In the play, the King pressures More to sign the statement and promises to pardon him if he will sign. More asks the King, I’ve acknowledged your right to rule and your Queen, “then why does your Grace need my poor support?”

The King’s response was, “Because you’re honest… and what is more to the purpose, you’re KNOWN to be honest. There are those … who follow me because I wear the crown; and those … who follow me because they are jackals with sharp teeth and I’m their tiger; there’s a mass that follows me because it follows anything that moves. And then there’s you….”

Later, a friend of More’s tried to talk him into signing a statement to avoid the King’s wrath by saying, “Oh, confound all this…. Thomas, look at those names…. You know those men! Can’t you do what I did, and come with us, for fellowship?” More responded, “And when we stand before God, and you are sent to Paradise for doing according to your conscience, and I am damned for not doing according to mine, will you come with me, for fellowship?”

Later, Oliver Cromwell tried to bully More into signing the statement. More objected to being bullied and said, “You threaten like a dockside bully.” Cromwell responded, “How should I threaten?” More responded, “With justice.” Cromwell, then replied, “Oh, justice is what you’re threatened with.” Thomas More said, “Then I’m not threatened.” Obviously, More understood that a process focused on right and wrong and justice and fairness would not harm him.

Another interesting conversation in A Man for All Seasons shows why the Rule of Law must protect everyone’s rights — no matter how unpopular or disliked. More’s son-in-law, William Roper, while discussing the Rule of Law and More’s defense of it asked, “So, now you give the Devil the benefit of law!” More responded, “Yes! What would you do? Cut a great road through the law to get after the Devil?” Roper responded, “Yes, I’d cut down every law in England to do that!” Sir Thomas More’s response is both insightful and correct:

“Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil the benefit of the law, for my own safety’s sake!”

More was no fan of the Devil as he was a very religious man and was executed because of his commitment to his faith and refusal to bend to the will of the King. But his point was important and true — we cannot have laws and judicial processes that only protect those that we like or approve of. Even those we despise must be afforded the benefits of the Rule of Law or we do not have the Rule of Law.

Thomas Paine’s description of America as a place where the law is king will hopefully always be true. Our nation’s freedom depends upon it. Thus, Americans who value freedom must, as Thomas More did, uphold, support and champion the Rule of Law. There is no freedom without it.

George Landrith is the President of Frontiers of Freedom. Frontiers of Freedom, founded in 1995 by U.S. Senator Malcolm Wallop, is an educational foundation whose mission is to promote the principles of individual freedom, peace through strength, limited government, free enterprise, free markets, and traditional American values as found in the Constitution and the Declaration of Independence.

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Principle of Governing to Secure Liberty of the People, Not Government

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Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Our Founding Fathers did not create a government or craft a constitution to serve government’s interests or even their own narrow interests. They created a government that focused on securing the liberty of the American people and that strictly limited and checked the power of the federal government. They had a great deal of experience with government that existed for the primary purpose of advancing the interests of those who already had tremendous political power.

They had experienced the tyranny of the British Crown. In the Broadway play “Hamilton,” King George sings, “And when push comes to shove, I will send a fully armed battalion to remind you of my love” and “when push comes to shove, I will kill your friends and family to remind you of my love.” While those exact words were not likely uttered by King George, that was what he did in practice. It also reveals the way so many rulers treated their subjects throughout history.

Our Founders specifically rejected this model of abusive and unlimited government. Virtually every government in recorded history either started out, or became first and foremost about increasing and preserving its own power, influence and prestige at the expense of its subjects. Rarely has government been focused on the citizen’s freedom and opportunity. That may be the rhetoric used to obtain or retain power, but it has rarely been the actual focus of government.

Every dictator in history has made promises of using the power that he sought for the benefit of the people. But virtually none of them have actually done it. It has always been a talking point, but not an action point. Whether it was Mao or Lenin, Hitler or  Mussolini, Castro or Chavez, or the Ayatollah, they all promised to create a more equal and just society, and to right past wrongs. But, of course, history records that they magnified and multiplied the wrongs and made society far worse. They created societies of increased brutality, misery, and poverty.

In contrast, America’s Founders wrote a constitution that limited the power of government — even though they knew that they would likely be the early presidents, cabinet secretaries, congressmen and senators. In other words, they wrote a constitution that limited their own power. That proves they were not cut from the same cloth as most of the rulers we read about in history books. They formed a government designed to limit and check governmental power, but keep the people as free as possible from government’s arbitrary edicts and mandates.

Some argue that one of the weaknesses of our Constitution is that it is difficult and sometimes cumbersome to get things done. But that wasn’t by accident. It was by design. Our Founders understood that government’s power to do evil and to compromise and abridge the natural rights of its citizens was far more significant than the likelihood that government power, if left unchecked, would be used to benefit the citizenry or preserve their freedoms.

So our Founders wisely placed limits on their own power. They did this because they wanted to create a society where the freedoms and the opportunities available to the citizenry were virtually unlimited. They did not see themselves as rulers and American citizens as their subjects. They saw themselves as having been temporarily entrusted with limited powers to govern, not rule; and they saw Americans as citizens, not subjects.

George Washington, the president of the constitutional convention where our Constitution was written, debated and passed, and our nation’s first president, refused to be called by the titles that many of the kings and powerful were called in Europe. He said “No” to being called His Highness, His Excellency, His Mightiness, His Elective Majesty, among others. He said his title should be “Mr. President.”

At that time, those of power and wealth had titles — Lord, Duke, His Grace, etc. In contrast, a person of common station, with no real societal power, was referred to simply as Mister. And that is the title that George Washington chose to emphasize that the government they were forming wasn’t there to benefit those who held office, but to guarantee freedom and opportunity to its people.

But it wasn’t merely George Washington who rejected the historical political power model of Europe. The Founders as a group wanted to build a society whose foundation included the principles of self-government, but that also didn’t subject our basic rights to the popular vote. Simply stated, the Bill of Rights makes it clear that even if the vast majority of Americans don’t like what you’re saying or writing, you have the right to say it or write it.

Even if the majority dislikes you, you have the right to due process and a fair trial if you’re accused of a crime. Even if the government wants your property and claims to need it for the public good, it may not take it from you without paying you for its value. The Bill of Rights, properly understood, is not a statement of rights as much as it is a firm prohibition against government and the majority trying to abridge our God-given rights. So our Founders crafted a government designed to empower the people through majoritarian processes, but also protected our rights — placing them beyond the power of a popular vote or the power of government to abridge.

If we think about the type of constitution that most people throughout history who have aspired to power would write, we would see few limits on their power and a great deal of limits on the people and their rights. But our Founders were very different and that made a huge difference in the sort of nation the United States of America became.

It was John Adams, our nation’s second president and a crucial Founder, who said in a letter, “We ought to consider, what is the end of government, before we determine which is the best form.” [1] And the Founders did precisely that. They thought about what they wanted America to become — a land of freedom and opportunity for its citizens — and carefully crafted a constitution to accomplish that goal. This is proof positive that our Founders were very different from most of history’s politically powerful figures.

Our Founders understood the fundamental importance of limiting the power of government and leaving the people free to govern the details of their own lives. As James Madison said in the Federalist Papers, Number 51,

“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 the next place, oblige it to control itself.”

Throughout history, governments had whatever powers they could get away with exercising — including genocide and murder of the masses. But our Founders designed a government that would be the foundation for a civil society of order and peace, but anywhere beyond that, government was forced to limit itself and its actions.

This has made all the difference and launched America to greatness. This approach made Americans the freest, most prosperous people in the world. People clamor to come to America from all over the globe because they see it as a shining city on a hill and as a land of opportunity. When the power of the government is constitutionally limited, the freedoms and opportunities of the people are maximized and the people thrive rather than merely survive.

Our Founders got it right — they didn’t build a government to benefit themselves or make government all-powerful. They carefully crafted a constitution that made Americans free, protected their rights, and made opportunity a key feature of the nation. That makes our Founders unique in history and we owe them a debt of gratitude.

George Landrith is the President of Frontiers of Freedom. Frontiers of Freedom, founded in 1995 by U.S. Senator Malcolm Wallop, is an educational foundation whose mission is to promote the principles of individual freedom, peace through strength, limited government, free enterprise, free markets, and traditional American values as found in the Constitution and the Declaration of Independence.

[1] John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, April 1776. https://teachingamericanhistory.org/document/thoughts-on-government-2/

Further reading:

Papers of John Adams, volume 4, III Thoughts on Government, Massachusetts Historical Society

https://www.masshist.org/publications/adams-papers/index.php/view/ADMS-06-04-02-0026-0004

The Works of John Adams, vol. 4. Part of The Works of John Adams, 10 vols. A 10 volume collection of Adams’ most important writings, letters, and state papers, edited by his grandson. Vol. 4 contains Novanglus, Thoughts on Government, and Defence of the Constitution. https://oll.libertyfund.org/title/adams-the-works-of-john-adams-vol-4

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Magna Carta’s Influence on the Declaration of Independence & U.S. Constitution

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Essay 2 - Guest Essayist: George Landrith
King John signing Magna Carta, 1215. Depicted is a signature, though typically an official seal would be affixed. Illustration by James William Edmund Doyle, 1864.

The Magna Carta created the moral and political premise that, in many ways, the American founding was built upon. The Magna Carta came to represent the idea that the people can assert their rights against an oppressive ruler and that the power of government can be limited to protect those rights. These concepts were clearly foundational and central to both the Declaration of Independence and the United States Constitution.

First, a bit of history about Magna Carta — its full name was Magna Carta Libertatum which is Latin for “Great Charter of Freedoms.” But, it became commonly known as simply Magna Carta or the “Great Charter.” It was written in 1215 to settle an intense political dispute between King John of England and a group of barons who were challenging King John’s absolute right to rule. The terms of the charter were negotiated over the course of three days. When they reached agreement on June 15, 1215, the document was signed by the King and the barons at Runnymede outside of London.

This was a time when kings asserted the absolute right to rule, and that they were above the law and that they were personally chosen to rule by God. At this time, even questioning the King’s power was both treasonous and an act of defiance to God himself.

The Magna Carta limited the king’s absolute claim to power. It provided a certain level of religious freedom or independence from the crown, protected barons from illegal imprisonment, and limited the taxes that the crown could impose upon the barons, among other things. It did not champion the rights of every Englishman. It only focused on the rights of the barons. But, it was an important start to the concept of limiting the absolute power of governments or kings that claimed God had given them the absolute right to rule.

Magna Carta is important because of the principles it stood for and the ideas that it came to represent — not because it lasted a long time. Shortly after signing the charter, King John asked Pope Innocent III to annul it, which he did. Then there was a war known as the First Barons War that began in 1215 and finally ended in 1217.

After King John died in 1216, the regency government of John’s nine-year-old son, Henry III reissued the Magna Carta, after having stripped out some of its more “radical” elements in hopes of reuniting the country under his rule. That didn’t work, but at the end of the war in 1217, the original Magna Carta’s terms became the foundation for a peace treaty.

Over the following decades and centuries, the importance of Magna Carta ebbed and flowed depending on the current king’s view of it and his willingness to accept it, or abide by it its concepts. But subsequent kings further legitimized or confirmed the principles of Magna Carta — often in exchange for some grant of new taxes or some other political concession. But the path towards limited government and individual rights had been planted and continued to grow.

Despite its relatively short political life as a working document, Magna Carta created and memorialized the idea that the people had the right to limit the powers of their government and they had the right to protect basic and important rights. By the end of the Sixteenth Century, the political lore of Magna Carta grew and the idea of an ancient source for individual rights became cemented in the minds of reform-minded political scholars, thinkers and writers.

Obviously, it wasn’t as written in 1215 a document that protected the rights of the average Englishman. It only protected English barons. But the concepts of individual rights and the limitations of governmental power had grown and were starting to mature. Magna Carta was the seed of those powerful concepts of freedom and constitutionally limited government.  By the 17th and 18th Centuries, those arguing for reforms and greater individual rights and protections used Magna Carta as their foundation. These ideas are at the very center of both the Declaration of Independence and the United States Constitution.

As English settlers came to the shores of North America, they brought with them charters under the authority of the King. The Virginia Charter of 1606 promised the English settlers all the same “liberties, franchises and immunities” as people born in England.[1]  The Massachusetts Bay Company charter acknowledged the rights of the settlers to be treated as “free and natural subjects.”[2]

In 1687, William Penn, an early American leader, who had at one point been imprisoned in the Tower of London for his political and religious views, published a pamphlet on freedom and religious liberty that included a copy of the Magna Carta and discussed it as a source of fundamental law.[3] American scholars began to see Magna Carta as the source of their guaranteed rights of trial by jury and habeas corpus (which prevented a king from simply locking up his enemies without charges or due process). While that isn’t necessarily correct history, it is part of the growth of the seed of freedom and liberty that Magna Carta planted.

By July 4, 1776, the idea that government could, and should be, limited by the consent of its citizens and that government must protect individual rights was widely seen as springing forth from Magna Carta. The beautiful and important words penned by Thomas Jefferson in the Declaration spring from the fertile soil of Magna Carta:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Obviously, Thomas Jefferson’s ideas of liberty and freedom had developed a great deal since Magna Carta was penned in 1215. But, it is impossible to read Magna Carta and the Declaration of Independence and not see the common DNA.

When the Founders debated, drafted and ratified the U.S. Constitution, it is also clear they were creating a set of rules and procedures to limit and check the power of government and to guarantee basic, individual rights.

The Fifth Amendment to the Constitution which guarantees “no person shall be deprived of life, liberty, or property, without due process of law,” is a concept that comes from Magna Carta. Our constitutional guarantees of “a speedy trial” as found in the Sixth Amendment are also founded in the political thought that grew from Magna Carta. The Constitution’s guarantee of the “privilege of the writ of habeas corpus” (Art.1, Sec. 9) is also a concept that grew from Magna Carta.

Even the phrase “the law of the land” comes from Magna Carta’s history. And now we use that phrase in the United States to describe our Constitution which we proudly label “the law of the land.”

To this day, Magna Carta is an important symbol of liberty in both England and the United States.

The Declaration of Independence and the U.S. Constitution are in my estimation the two most important and influential political documents ever written. What they did to provide promote and protect the freedom, opportunity and security of the average person is almost impossible to overstate. As British Prime Minister William Gladstone said in 1878, “the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man.”[4]

I believe Gladstone was correct. But, Magna Carta was an important development in political thought and understanding about government power and individual rights. It is difficult to imagine the Declaration of Independence or the U.S. Constitution without the foundational elements provided by Magna Carta.

George Landrith is the President of Frontiers of Freedom. Frontiers of Freedom, founded in 1995 by U.S. Senator Malcolm Wallop, is an educational foundation whose mission is to promote the principles of individual freedom, peace through strength, limited government, free enterprise, free markets, and traditional American values as found in the Constitution and the Declaration of Independence.

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[1] The Library of Congress (www.loc.gov/exhibits/magna-carta-muse-and-mentor/rights-of-englishmen-in-british-america.html#obj022) as shown on 2/13/2021.

[2] The Library of Congress (www.loc.gov/exhibits/magna-carta-muse-and-mentor/rights-of-englishmen-in-british-america.html#obj023) as shown on 2/13/2021.

[3] Ralph V. Turner, Magna Carta: Through the Ages (2003).

[4] William E. Gladstone, “Kin Beyond Sea,” The North American Review, September–October 1878, p. 185-86.

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Partisanship & Violence In Congress: The Caning Of Senator & Abolitionist, Charles Sumner (1811-1874) (R-MA)

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Guest Essayist: George Landrith

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Partisanship and Violence in Congress — Not All Partisanship Is Bad, but Some Partisanship Is Catastrophic

Washington is a city that has long been known for partisanship. Even as respected and honored as he was, George Washington was viciously and unjustly attacked by partisans.

Thomas Paine who helped build support for America’s independence by writing the historic political pamphlet “Common Sense,” accused Washington of corruption and wrote that “the world will be puzzled to decide whether you are an apostate or an impostor; whether you have abandoned good principles, or whether you ever had any.”[1]

Partisans for Thomas Jefferson and John Adams viciously attacked each other with such labels as: atheist, tyrant, coward, fool, hypocrite, and weakling. Jefferson’s allies accused Adams of having a “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.”[2]  Adam’s partisans called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”[3]

Partisans are strong supporters of a political party or cause. There is nothing wrong with being a partisan as long as it is healthy partisanship and the cause is within the bounds of the Constitution. But Partisanship becomes unhealthy when support for the cause becomes disconnected from fact, reason, constitutional limits, or basic right and wrong.

In 1856, regional tensions between North and South were intensifying, and the U.S. Senate Chamber became a cage fight arena of sorts. On May 19, 1856, Senator Charles Sumner of Massachusetts, a deeply committed abolitionist, gave a fiery speech in which he lambasted his opponents and specifically attacked his colleague Senator Andrew P. Butler of South Carolina. That may have been uncivil. But three days after that speech, on May 22, 1856, Senator Sumner was on the Senate floor affixing the franking stamp to copies of his speech which he intended to mail to supporters. Unknown to Sumner, Senator Butler’s cousin, Congressman Preston Brooks, entered the Senate Chamber and clubbed Senator Sumner into unconsciousness with a cane. Witnesses said that Sumner never saw it coming and the beating was so severe, that it took him years to fully recover.

That is a classic example of toxic congressional partisanship. But it wasn’t uncharacteristic of the time. In the decade leading up to the Civil War, Congress was plagued by toxic partisanship. During that time, Members of Congress often carried firearms in the chambers, made death threats against each other, engaged in fistfights and even group brawls.

Sadly, unhealthy, corrosive partisanship is nothing new. But acknowledging that bitter hyper-partisanship has been around a long time, is not an attempt to justify or normalize it. Obviously, civility should be our standard. We can engage in robust debate. But threats and violence have no place in a constitutional republic.

In the last few decades, it seems that partisanship has grown more heated and occasionally even veers into toxic partisanship. We have seen more and more veiled threats and in some cases actual violence motivated by partisanship.

The mass shooting of GOP Members of Congress in June 2017 by an angry, and likely, mentally ill Democrat campaign volunteer on Senator Bernie Sanders’ presidential campaign is one of the most recent and most egregious examples of toxic partisanship gone way too far.

A more subtle version of hyper partisanship is now in vogue. Calling upon supporters to “confront” political opponents wherever they may be, is clearly an attempt to put them in fear for their safety — without actually crossing the red line of doing them physical harm. But it is nonetheless an attempt to threaten the opposition and bully them into submission. This cannot be tolerated in a free society.

When partisanship displays itself as robust disagreements and debates about important public policy and political issues that fall within the limited powers given to government, partisanship is not a bad thing. We need a robust debate. It isn’t necessary for everyone to agree on everything. But when partisanship becomes threats of violence or worse still, actual violence, it is a sign that something is deeply wrong.

The truth is politics is a surrogate for violence and war. In a less civilized society, those who can enforce their will upon the rest of the populace become the rulers. In establishing a constitutional republic, the Founders were attempting to set aside that age old “rule by force” model of government.  Instead, they created a system where the voice of the people ruled — without enforcing their will through threats and violence.

The Constitution was a compact that we would accept election results, and if we were unhappy with those results, we would redouble our efforts to win the next election. In that social compact, we agreed not to subvert the system and revert to the “rule by force” model of governance.

But an integral part of that compact was also designed to reduce the friction points, and maximize personal freedom in an ordered society.  Thus, we also agreed in that compact that certain issues were off the table — certain issues would not be subject to a vote and our individual rights could not be endangered by an overzealous majority.  For example, our Constitution gives the federal government a short and specific list of limited powers. So the majority wins on that short list of powers, but it doesn’t win on everything that it wants. Some things are beyond the government’s or the majority’s power.

Additionally, most of the Bill of Rights limits the power of the government and the majority. No matter how many Americans dislike your political opinions, you are free to speak and write them. No matter how small a minority your faith may be, you can freely exercise your religious beliefs. No matter what the majority or government may say, you have the right to own firearms to protect yourself and keep a check on government. No matter how unpopular you may be, you may not be denied due process or a fair trial.  No matter how much the government may want your property, it may not take it for public use without just compensation. These are only some of the limits on the power of government built into our constitutional system.

The majority’s power and the government’s power was limited on purpose — not by accident or oversight. Many things were simply off limits and not subject to a majority vote. By doing this, the Founders hoped to avoid the problems so often associated with democracies — that too often they became an exercise of three wolves out-voting two sheep about what is for dinner.

The Founders believed that a significantly limited government would reduce the surface area for political friction that could rub raw and blister our civil society. Simply stated, they did not want the majority to be able to impose its will on every conceivable issue.

As government has grown in the powers it asserts and the control it claims of its citizens’ rights, the chances for serious conflict dramatically increase. This is one of the many reasons, why we should cling to the Founders vision of a constitutional republic with limited powers. One of the dangers of an ever expanding government is that it leads to more friction points and more conflict as government imposes it will on an unwilling minority on an ever growing list of issues that were once off-limits for government.

As Americans, we should be civil and eschew threats and violence. We should argue for our beliefs with vigor, but we should not attempt to use the power of numbers to impose our will by force when the Constitution does not give us that power.

Every bit as important — Americans should respect the concept of limited constitutional powers. That means the majority is limited in what victories it can claim. Without limits on government, an over-zealous majority will eventually so trample the minority, that they will begin to feel that their only option is revolution. Those seeking to impose their will on the minority, should keep in mind that the social compact is designed to give the majority its way only on those matters that are properly within the government’s power. But it is also designed to protect the minority from an over-zealous majority that believes its views are correct and should be imposed on all.

On a practical level, if we are smart and responsible, we will support government that circumspectly exercises only those powers that it was actually given in the Constitution. This is one more way that the Founders hoped to avoid toxic and hyper-partisanship. Then with that foundation, we can freely discuss, debate, and argue actively for our views on what public policy should be. That would be healthy partisanship. We need more of that in Congress and in the populace.

George Landrith is the President of Frontiers of Freedom.

[1] https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/press-attacks/#note11

[2] http://thegarrisoncenter.org/archives/5122

[3] http://thegarrisoncenter.org/archives/5122

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The Articles Of Confederation: The First Written Constitution Of The United States – Guest Essayist: George Landrith

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After the decisive Battle of Yorktown in October of 1781 where General George Washington’s army defeated and captured the British army commanded by General Charles Cornwallis, the British sued for peace. America had finally won the independence that Jefferson had written about in his famous Declaration formalized by the Continental Congress on July 4, 1776. It took more than five years of war to win that freedom. Now came the difficult task of establishing a nation dedicated to the principles of freedom and self-government.

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Can Congress Stop Federal Agencies From Running Riot Over Your Liberties? Yes. – Guest Essayist: George Landrith

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News reports of federal agencies abusing the rights of Americans and violating the law have become all too common. It is no longer plausible for defenders of big government to argue that these abuses are simply a few isolated incidents. We have witnessed a veritable parade of lawless abuses from all corners of the federal government. Read more

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Essay #78 – The Study of Administration by Woodrow Wilson

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Guest Essayist: George Landrith, President of Frontiers of Freedom

Woodrow Wilson:  A Failed President

One of the most common ways of judging a president is to simply ask if there was peace and economic prosperity during his time in office? This is a useful analysis, but not entirely complete. The president isn’t the only reason there might be peace or prosperity. Thus, other criteria should be taken into account. What policies did the president pursue? What impact did they have? And how did the president use the power entrusted to him by the American public? By these criteria, Woodrow Wilson was a failed president.

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Letters I and II by Federal Farmer: The Debate about the Size and Scope of the Federal Government is Not New

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Guest Essayist: George Landrith, President, Frontiers of Freedom

Today, much of the national political debate centers on the size and scope of the federal government. Whether the discussion is focused on federal spending, the debt, or the merits and demerits of a nationalized healthcare system, at its core, the debate is about how much power the federal government should properly wield. Read more

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Fast Day Proclamation of the Continental Congress

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Guest Essayist: George Landrith, President, Frontiers of Freedom

The Founders’ proclamations on fasting and prayer are relevant today

by George Landrith

Today, many Americans think that government and even public life must be strictly separated from religious life and faith. Few know what the Constitution actually says about religious freedom or what the Founders believed about the concepts of liberty, God, and religion. But our history paints a very clear picture.

On March 16, 1776, the Continental Congress meeting in Philadelphia issued a proclamation calling for a day of fasting and prayer. Read more

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Amendment X: Rights Reserved to the States and the People

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Guest Essayist: George Landrith, an attorney and President of Frontiers of Freedom

http://vimeo.com/40278141

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment:
Protecting Freedom Against Big Government

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment protects Americans from big, intrusive federal government action. The heart of the Tenth Amendment is that the federal government has only those powers explicitly listed in the Constitution and all other powers are reserved to the States and to the people, and therefore explicitly denied to the federal government.

In contrast, state governments have all powers not explicitly prohibited or withheld by the state constitution or by the U.S. Constitution. Thus, states have broader powers and can, do things that Congress cannot do. For example, states can require young students to attend school and drivers to purchase automobile insurance.

Too often those in Congress and the White House assume that the federal government can do whatever the majority wishes. However, the Founders clearly and explicitly intended to prevent the majority from doing whatever it wished. Thus, they gave the federal government a very limited and carefully chosen list of powers and they reserved all other powers for the states and the people. They also provided an elaborate system of checks and balances – all to limit the power of the majority to impose its will.

The Founders felt so strongly about limited federal power as a bulwark of liberty that they added the Ten Amendment as the final exclamation point in the Bill of Rights – the federal government could not trample the rights of the people by assuming powers that it did not have, and that had been reserved to the states and the people.

At the heart of the debate over Obamacare before the Supreme Court is the question – does the federal government have the authority under the U.S. Constitution to require citizens to purchase a product? If the justices can read and understand the simple language of the Constitution, they will strike down the law because the federal government does not have the authority to do what it attempted to do in this statute.

This author is not a supporter of the Massachusetts healthcare law, but it is constitutional. There are significant differences between the Massachusetts law and ObamaCare, but perhaps the biggest difference is that Massachusetts had the authority to pass its healthcare law. That doesn’t mean it was a good idea, it just means it was constitutional. But the federal government did not have the authority to pass Obamacare. Obamacare exceeds the enumerated and limited powers given to the federal government and the limitations of the Tenth Amendment.

The Tenth Amendment is also an explicit statement of the governing principle of federalism. Federalism is the idea that there is a national government with limited powers and there are state governments with broader powers, both receiving their authority from the people. Simply stated, federalism recognizes the fact that the states are not merely political subdivisions of the federal government, but that they are separate governmental units that derive their power directly from the people and not from the federal government.

These are not old fashioned or outdated ideas. They constitute real and practical protections against the bullying powers of big government on the federal level. The Founders put in place checks and balances, limitations on power, and divisions of power – all designed to keep federal government from becoming too big, too powerful, and too intrusive. The Tenth Amendment is key to their wise designs to limit the power and scope of the federal government.

George Landrith is an attorney and the President of Frontiers of Freedom

April 13, 2012

Essay #40

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