From the beginning, Americans have sought to create a country where citizens could hold differing views, but, at the same time, we've understood that there needed to be certain basic agreements regarding how to live our lives.
In our own time, these basic agreements — general principles of government which our Framers thought were timeless — have eroded, but the upcoming presidential election ought to be understood as a referendum on whether we still believe in them.
Our political scientists, our sociologists, our novelists, and many other of our cultural and religious leaders have tried to articulate what it is that is supposed to bind us together as Americans, and, as a law professor, I’ve tried my hand at it as well.
When Jamil Zainaldin and I published a book that became a leading casebook in American Legal and Constitutional History we argued that there were four core principles of our legal system: (1) that no one had the right to exercise arbitrary power, (2) that sovereignty was not vested in a monarch or an aristocracy, but in the American people themselves, (3) that we, as a nation, were committed to economic progress and social mobility, and that (4) we were devoted to maintaining limits on government so that there was always room for private property and individual initiative.
To state these aims is also to recognize the tension among them, since, for example, if we completely deferred to the will of the sovereign people it could be exercised arbitrarily, or if we excessively promoted economic growth it could lead to vast inequalities in wealth which might, at some point, endanger democracy. Promoting individualism might, of course, foster arbitrary actions, or even put at risk our goal of popular sovereignty.
One could easily concoct other possible antinomies, but to recognize these competing ideals is to understand that the genius of American institutions is that for almost two and one half centuries, with the exception of our Civil War and Reconstruction, we have been able to avoid allowing any one of our shared goals to overwhelm the others.
In recent years our colleges and universities have become increasingly specialized in their educational goals. This has meant that we have raised two generations without much of an appreciation of American history and shared American culture.
Worse, the vacuum in appreciation of complex American institutions and goals has been filled with nostrums such as a philosophy of individual self-actualization, identity politics, and excessive fear of climate change, and we are now in the gravest danger of forgetting the very purposes for which our ancestors established our Republic.
The pandemic and the responses to it by our state and local governments have brought this danger to the attention of our judiciary, which, as Alexis de Tocqueville explained in his great "Democracy in America," is often tasked with resolving our knottiest political problems.
A positive signal was sent by the courageous decision of one federal court judge sitting in Pennsylvania, who overturned Pennsylvania Governor Tom Wolf’s unconstitutional actions "that required people to stay at home, placed size limits on gatherings and ordered ‘non-life-sustaining’ businesses to shut down."
That judge, U.S. District Judge William Stickman IV, a Trump appointee, pointed out that no one in our system possesses unfettered political power, and that the Constitution remains in force even during a pandemic.
In doing so, he underscored the importance of individual freedom and individual commercial efforts under that Constitution as a means of preserving American prosperity.
A similar reaffirmation of our historic commitments to reigning in arbitrary power and preserving popular sovereignty was made by U.S. Atty. Gen. Bill Barr in a speech on Sept. 16, at Hillsdale College, where he remarked that "putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history."
In that same speech, in honor of Constitution Day, Barr praised that document’s checks and balances — principal tools for restraining arbitrary power — and in particular explained its wisdom in making prosecutors accountable to the people through the actions of political appointees such as the attorney general and the president.
No point could have been more important in a country that has recently witnessed the excesses of the special counsel investigating purported Russian Collusion or the persecution of Lt. Gen. Michael Flynn.
As we approach Nov. 3, it's becoming increasingly clear that President Trump and his administration appear to be the party committed to the preservation of our historic national goals, while, if the actions of Blue State governors such as Mr. Wolf may be taken as an indicator, a Biden/Harris administration would be likely to ignore traditional American restraints.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. Read Stephen B. Presser's Reports — More Here.
© 2022 Newsmax. All rights reserved.