Of course, sometime after the American Revolution, when the framers undertook the task of drafting the Constitution, the preamble, although merely introductory and adopted near the end of the Constitutional Convention, declared formally and publicly the official purpose of their task: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”32 As Pettit contends, the framers did so to secure and promote individual liberty and the civil society.
Pettit also explains that some of the founding-era writers supported a populist approach to government, favoring majoritarianism (meaning a democratic form of government) to republicanism, and that such a governing construct actually threatens the safeguards against arbitrary interference with individual liberty. “While it is true that the republican thinkers [meaning those who believe in a republican form of government] in general regarded democratic participation or representation as a safeguard of liberty, not as its defining core, the growing emphasis on democracy did lead some individuals away from traditional alignments and towards the full populist position of holding that liberty consists in nothing more than democratic self-rule. . . . Rousseau is probably responsible for having given currency to such a populist view. The populist twist was a new development, and attained its full form only when the ideal of democratic self-rule came to be held up as the main alternative, or at least the main alternative among notions of liberty, to the negative ideal of non-interference. To think of the republican tradition as populist, as of course many have done, would be to sustain the very dichotomy that has rendered the republican ideal invisible.”33
This new “populism” certainly was not the dominant view during America’s founding. The entire debate surrounding the drafting, adoption, and ratification of the Constitution, and the debates between the Federalists and Anti-Federalists, make this abundantly clear. As discussed earlier and at length, however, the progressives did and do use populist language and appeals to nationalism to make alluring the promotion of an ever larger and more centralized governmental presence and administrative structure. Their approach could be characterized as democratizing tyranny. Progressives condemn America’s founding principles, including the Declaration of Independence and its emphasis on individual unalienable rights, as well as the Constitution, especially the separation-of-powers doctrine and federalism, precisely because of their republican features and obstacles to concentrated governmental power.
Pettit takes a somewhat different view than Berlin in that he contends the republican emphasis on avoiding interference did not come as a belief in freedom as noninterference but as a belief in freedom as nondomination. “There are two grounds for thinking that the conception of liberty as non-domination is the view of liberty that we find in the republican tradition. This first is that in the republican tradition, by contrast with the modernist [progressive] approach, liberty is always cast in terms of opposition between . . . citizen and slave. The condition of liberty is explicated as the status of someone who, unlike the slave, is not subject to the arbitrary power of another; that is, someone who is not dominated by anyone else. Thus, the condition of liberty is explicated in such a way that there may be a loss of liberty without any actual interference: there may be enslavement and domination without interference, as in the scenario of the non-interfering master. . . . The second ground is that liberty is explicated within the republican tradition in such a way that not only can liberty be lost without actual interference; equally, interference may occur, under the scenario of the non-mastering interferer, without people being rendered thereby unfree. The non-mastering interferer envisaged by republicans . . . was the law and government that obtains in a well-ordered republic.”34
Pettit contends that “the interference-without-domination motif comes out in the republican emphasis on the fact that while the properly constituted law—the law that answers systematically to people’s general interests and ideas—represents a form of interference, it does not compromise people’s liberty; it constitutes a non-mastering interferer.”35 “According to the earliest republican doctrine, the laws of a suitable state, in particularly the laws of a republic, create the freedom enjoyed by citizens; they do not offend against that freedom, even in a measure for which they later compensate. . . . As the laws create the authority that rulers enjoy, so the laws create the freedom that citizens share. The laws only do this, of course, so long as they respect people’s common interests and ideas and conform to the image of an ideal law; so long as they are not the instruments of any individual’s, or any group’s, arbitrary will. When the laws become the instruments of will, according to the tradition, then we have a regime—say, the despotic regime of the absolute king—in which the citizens become slaves and are entirely deprived of their freedom. . . .”36
Pettit argues the republican view holds that “[g]ood laws may relieve people from domination—may protect them against the resources or dominium of those who would otherwise have arbitrary power over them—without themselves introducing any new dominating force; without introducing the domination that can go with governmental imperium. The political authorities recognized by the laws represent potential dominators, but the recurrent republican idea is that these will themselves be suitably constrained—they will have no arbitrary power over others—under a proper constitution; say, where suitable mechanisms and representation, rotation of office, separation of powers, and like are in place. While the law necessarily involves interference—while law is essentially coercive—the interference in question is not going to be arbitrary; the legal authorities will be entitled and enabled to interfere only when pursuing the common interests of citizens and only when pursuing these in a manner that conforms to the opinions received among the citizenry.”37
However, Berlin’s negative liberty of noninterventionism and Pettit’s modification of interventionism to nondomination are not necessarily in conflict. Instead, I believe that both, taken together with virtue, represent the intent and approach of the American Founders. There are essential areas of individual liberty that should remain unmolested by man-made entities like government, and there are other areas where there may be intervention, including of the nondominant sort. The drawing of lines is relevant only within the framework of natural law considerations, civil society compacts, and a republican governing system. (Tyrannical regimes are built on notions of positive liberty, where such line drawing is less relevant because individualism is less relevant.)
For example, negative liberty, both noninterventionist and nondominant, are present in the Constitution’s Bill of Rights. It is a set of negative liberty directives to the federal government, where the federal government is prevented from taking certain actions altogether, or where actions are to be limited in scope.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.38
Of course, for the progressive, none of this is of consequence. The progressive believes in a spiritual and actual slavery to mankind’s perfectibility by mankind itself. The American heritage is considered a heritage of folklore and irrelevance, if not regressive and obstructive. Therefore, for the progressive, reason alone, the here and now, science applied to human behavior and governance, the individual as community, and the existing social needs require a “higher nature.” And that higher nature is of modern man’s making, unencumbered by external truth, the guidance and constraints of a moral order, or ancient traditions. Again, as Berlin said, the question then is not about the individual’s liberty but is “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?”39 For the progressive, the answer is the centralized administrative state, where the individual is coerced in infinite ways, as willed by the machinery of the state. As such, reason transforms into will, which in turn transforms into an ideological pursuit of control and power. Actual science, reason, and knowledge are abandoned. Yet this is said to be liberating of both the individual and society. Mankind is said to be free and autonomous when, in fact, the opposite is true. Berlin wrote: “But to manipulate men, to propel them towards goals which you—the social reformer—see, but they may not, is to deny their human essence, to treat them as objects without wills of their own, and therefore to degrade them. That is why to lie to men, or to deceive them, that is, to use them as means for my, not their own, independently conceived ends, even if it is for their own benefit, is, in effect, to treat them as subhuman, to behave as if their ends are less ultimate and sacred than my own. . . .”40 Berlin explained: “If I find that I am able to do little or nothing of what I wish, I need only contract or extinguish my wishes, and I am made free. If the tyrant (or ‘hidden persuader’) manages to condition his subjects (or customers) into losing their original wishes and embracing (‘internalizing’) the form of life he has invented for them, he will, on this definition, have succeeded in liberating them. He will, no doubt, have made them feel free. . . . But what he has created is the very antithesis of political freedom.”41
Having rejected natural law and constitutional republicanism, the progressive embraces another theory of law, although foreign to the American heritage—positive law. Again, the word positive should not be confused with “the good” or promoting and securing liberty. Positive law is coercive law, law promulgated by the state to further the will and the purposes of the state. There is no moral basis or virtue tied to the law. The merits of the law are not material. In fact, such considerations are irrelevant. The government issues laws, rules, orders, or regulations and they are to be obeyed under threat of punishment. There is, then, a tension when the will of the state conflicts with the will of the people. However, for the progressive, external political influences, like elections, are nonlegal in nature. The state will determine if, and the extent to which, such nonlegal influences are worthy of consideration when developing, issuing, and enforcing the law. That said, as the very character of the government becomes less republican and more regime oriented, elections and other forms of popular and representative participation are less consequential. The ideologically driven “scientific”-based judgment of the administrative state, which has assumed much of the lawmaking authority of a legislature, ultimately prevails as it is unhinged from moral roots and grows increasingly immune from nonlegal influences.
At its core, positive law is an outgrowth of the doctrine of positivism, which in turn is a rejection of natural law. All knowledge is allegedly based on the relationships between and among phenomena resulting from empiricism and scientism. Auguste Comte (1798–1857), a French philosopher who is said by some to have originated the modern concept of positivism and the practice of sociology, wrote in his book A General View of Positivism (1848) that “[p]ositivism consists essentially of a Philosophy and a Polity [that is, an ideology and societal organization]. These can never be dissevered; the former being the basis, and the latter the end of one comprehensive system, in which our intellectual faculties and our social sympathies are brought into close correlation with each other. For, in the first place, the science of Society, besides being more important than any other, supplies the only logical and scientific link by which all our varied observations of phenomena can be brought into one consistent whole. . . .”42
Comte and John Stuart Mill were contemporaries. Mill wrote a book, Auguste Comte and Positivism (1865), in which Mill critiqued positivism and, specifically, condemned Comte’s thinking. Mill explained that positivism is the general belief that “[w]e have no knowledge of anything but Phenomena [perception or happenings]; and our knowledge of phenomena is relative, not absolute. We know not the essence, nor the real mode of production, of any fact, but only its relations to other facts in the way of succession or of similitude. These relations are constant; that is, always the same in the same circumstances. The constant resemblances which link phenomena together, and the constant sequences which unite them as antecedent and consequent, are termed their laws. The laws of phenomena are all we know respecting them. Their essential nature, and their ultimate causes, either efficient or final, are unknown and inscrutable to us. . . . Now, all foresight of phenomena, and power over them, depend on knowledge of their sequences, and not upon any notion we may have formed respecting their origin or inmost nature. . . . All foresight, therefore, and all intelligent action, have only been possible in proportion as men have successfully attempted to ascertain the successions of phenomena. Neither foreknowledge, nor the knowledge which is practical power, can be acquired by any other means.”43
For Comte and his followers of scientism, this meant and means much more than destroying theology; it discards all notions of eternal truths and transcendent principles. “The theological synthesis depended exclusively upon our affective nature; and to this is owing its original supremacy and its ultimate decline. For a long time its influence over all our highest speculations was paramount. . . . In my work on Positive Philosophy I have clearly proved that it constitutes only a transitory phase of mind, and is totally inadequate for any constructive purpose. For a time it was supreme; bu
t its utility lay simply in its revolutionary tendencies. It aided the preliminary development of Humanity by its gradual inroads upon Theology, which, though in ancient times entrusted with the sole direction of society, had long since become in every respect utterly retrograde.”44
Comte’s positivism and “stages of development” theory and the Hegel-Marx historicism are kindred and lay the foundation for modern progressivism. They all presume to know and establish the final stage of human development (even if the final stage is in a state of constant remaking), denounce organized religion and timeless truths, and worship the narcissism of their own moral nihilism. Indeed, Comte committed an entire chapter to the proposition of positivism-scientism-secularism as “the religion of humanity.” “Love, then, is our principle; Order our basis; and Progress our end. Such . . . is the essential character of the system of life which Positivism offers for the definite acceptance of society; a system which regulates the whole course of our private and public existence, by bringing Feeling, Reason, and Activity into permanent harmony. In this final synthesis, all essential conditions are far more perfectly fulfilled than in any other. Each special element of our nature is more fully developed, and at the same time the general working of the whole is coherent. Greater distinctiveness is given to the truth that the affective element predominates in our nature. Life in all its actions and thoughts is brought under the control and inspiring charm of Social Sympathy.” Comte added: “Public and private life are now brought into close relation by the identity of their principal aim, which, being kept constantly in sight, ennobles every action of both.”45 As with Rousseau, for Comte the individual realizes his fulfillment only as part of the whole community—that is, as a functionary of the state.
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