Abraham Lincoln is in the news again. That means that our politicians are comparing themselves to President Lincoln. This is an old pattern. After David McCullough’s Truman became a bestseller, the political class was busy drawing Truman comparisons. Now they are busy drawing Lincoln analogies. (Perhaps because he is from Illinois, President Obama has been comparing himself to Lincoln for years.) This pattern should not surprise us. John Adams noted that the most fundamental passion in the breast of politicians is the desire to be seen, to be noticed, to be loved: “The desire of the esteem of others is as real a want of nature as hunger; and the neglect and contempt of the world as severe a pain as the gout or stone.” Politicians hope to turn America’s affection to their own benefit by associating themselves with Lincoln, or Washington, or Truman, etc.
What is American Government?
A recent Democratic Party campaign commercial suggests that “the government is the only thing that we all belong to.”
At first glance, the commercial seems to be suggesting that we the people are servants of the government–and belong to it the way my pen belongs to me. A more fair construction would be to read it as saying that we all are part of the government. We belong to it the way we belong to a church congregation, or a sports club. The language implies that the American people and the American government are inseparable and indistinguishable.
In a famous letter to the Hebrew Congregation in Newport, Rhode Island, President Washington wrote:
It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.
In my previous post, I noted that the distinction between a tax and a regulation was well understood by the American revolutionaries. The distinction had to do with the purpose of the law. A tax was a law that was designed to raise money to pay for government, and a regulation was designed to influence (or regulate) human actions. To be sure, taxes do influence behavior, and many regulations do raise revenue, but those features are incidental to their purpose. Hence the colonists thought it would be legal for Parliament to regulate trade by making foreign molasses more expensive in the colonies, but Parliament could not legally impose a duty on foreign molasses if the main purpose of that duty was to raise revenue.
Tories, according to the American definition of the term, claimed that this was a distinction without difference. From their perspective, all laws that raise revenue were equally legal, regardless of the purpose of the law. For their part, the American Whigs said that the difference between a tax to raise revenue and a duty to regulate trade was obvious and important. Their constitutionalism focused on ends as much as it focused on means. Because the government existed, in part, to secure property, it was unconstitutional for Parliament to tax the colonists without their consent.
What is a tax, and what is a regulation or a penalty? That seems like a fairly straightforward question. But since Chief Justice Roberts released his opinion that Obamacare is constitutional because the “penalty” it imposes for failing to carry health insurance is really a tax, we have seen that it is, in fact, an interesting question.
Few have noted that this question was important in the early stages of the American Revolution.
John Adams reconciliation of natural right with popular consent is the task of constitutional politics.
Timothy Sandefur seems to let his dislike for John Adams get in the way of his analysis. Sandefur thinks that the issue is “the transition from the common law principle of ‘toleration’ to the natural-rights principle of religious liberty.” More generally, he suggests the issue is the transition from the idea that law creates rights to the idea that men, by nature, have rights. That is not the issue here. Adams had robust ideas of individual rights, including the rights of conscience, from the time he was a young man, as Brad Thompson has demonstrated in his John Adams and the Spirit of Liberty. That’s why, as Sandefur notes, in one of the letters to which he links, Adams said that the effort to secure the rights of conscience in Virginia were “worth all the blood and treasure which has been or will be spent in this war.” It is also why he refused to endorse Massachusetts’s religious establishment. Many historians have mistakenly attributed the establishment, in Article III, of the Massachusetts’s Constitution’s Declaration of Rights, to Adams. Sandefur accepts the correction in the narrow sense, but does not consider what that means for our understanding of Adams.
Calling Facebook co-founder Eduardo Saverin’s renunciation of American citizenship an “outrage,” that allows him to “duck up to $67 million in taxes,” Senator Charles Schumer wants to create a special tax on Americans who renounce their citizenship. One can understand his frustration–America welcomed Saverin’s family when they needed a place of refuge, and now he is turning his back on us, for no other reason, it seems, than to reduce his tax bill. Perhaps no one at Harvard taught him that patriotism is a virtue.
Yet Schumer’s attack is fundamentally misguided, and reveals a disturbing attitude toward private property. Should it impose such a tax, the American government would be saying that property is no longer truly private. It would be saying that the American government has a presumptive claim on any and all property “owned” by an American citizen.
That is a far cry from the ideas that made America great. Consider the American revolution. In January, 1777, when times were grim, and the fate of the Union rested on his shoulders, General Washington issued his “Proclamation Concerning Loyalists.” Washington lamented that there might be some who “prefer the interest and protection of Great-Britain to the freedom and happiness of their country.” Leading a revolution built upon the presumptive right of men to choose not to belong to the King, he realized that the same principle applied to those who continued to choose British subjecthood over American citizenship. Hence he declared that such people had “full liberty . . . to withdraw themselves and families within the enemy’s lines.”
John Adams’ name is in the news again. And once again he is being misrepresented. As in life, so too in death. In the past few month, then noted historian Rosemarie Zigarri wrote in the Washington Post that (in the Post’s words) “John Adams believed that the state should provide support for ministers.” In a much discussed essay on Ricochet, the distinguished historian Paul Rahe recently made the same claim.
Everyone knows that Adams wrote the Massachusetts Constitution of 1780, and everyone knows that Article III of the Constitution’s Declaration of Rights created a church establishment. QED, it would appear. The trouble is that Adams did not write Article III of the Massachusetts Constitution. Indeed, he refused to write it because, in his words, “I found I could not sketch [it], consistent with my own sentiments of perfect religious freedom, with any hope of its being adopted by the Convention, so I left it to be battled out in the whole body.” In that refusal lies an important story of democratic statesmanship.
In the past few months, we have heard a great deal about “judicial restraint.” In particular, Progressives have complained that if the U.S. Supreme Court strikes down the Obamacare mandate that all Americans carry health insurance, it will be a case of “judicial activism” on the part of the Supreme Court. And conservatives, they say, have long supported judicial restraint, rather than judicial activism. Some conservative commentators have asked whether this categorization is fair. That’s an interesting question from a party perspective, but it pushes aside another question: whether the idea of judicial restraint is compatible with current notions of judicial supremacy?