Winter 2011 issue -- The suggestion that a movement can be both radical and conservative may sound contradictory. To be radical is to pursue “fundamental or revolutionary changes” (American Heritage Dictionary) or look to the root of an issue; to be conservative is to favor stability over change and look to tradition as a guide. Yet there is a precedent as old as the American Republic for combining the two, a precedent that shows how radicalism and conservatism can interlock. I refer, of course, to the Declaration of Independence.
In the Declaration, Thomas Jefferson and the Continental Congress get to the root not merely of the political controversy of their moment—whether the Thirteen Colonies ought to become independent of Britain—but of politics itself. The Declaration summarizes an account of the purpose of government, the basis of its authority, and when and by whom a constitution ought to be changed. It makes a fundamental change in the governments under which its authors lived. But it also appeals to traditional legal norms.
The radical—in the sense of going to the root—account of politics set forth in the Declaration is grounded in John Locke’s Second Treatise of Government, which had been written nearly a century earlier. On this account, “all men are created equal” in the sense that no man has by nature any right or authority that others lack. (The extent to which Locke and the Founders understood “men” in this context to include nonwhite, female, or young individuals is best left for another day, although it’s worth noting that advocates of the rights of black people, women, and youth have invoked the principle: moral principles are not limited by their advocates’ mistakes.) Every man has the right to live, to act freely, and to create, keep, trade, and use property. In the “state of nature,” which exists where no political societies are established, these rights may be enforced by any man.
But in the state of nature, the attempt to enforce rights is likely to lead to violent struggles. People may take different views of rights, or of the facts of particular cases—especially because a person with as much right as anyone else to judge his case is likely to be biased in his own favor. Only if there is a common authority that enforces individual rights—one that finds facts impartially and applies the same, known interpretation of rights principles to all cases—can people be secure in their rights.
To provide this security, therefore, people come together and form political societies—large groups that then establish governments. The members of the group pool most of their rights to enforce rights—and this pooled right is then given to the government the society establishes. But the individuals do not surrender all their rights to society or government; that would defeat the purpose. And in addition to the limitations on government power implicit in the reasons for establishing government, each society sets up rules for the operation of its particular government that the latter may not breach.
It follows, then, that a government that makes individuals’ rights insecure does the opposite of what makes it worth having; it must be replaced. This should not be done lightly: your life, liberty and property are not very secure when a revolution is under way, especially if you are part of it. But when your rights cannot otherwise be secured because the people in power are going beyond their authority, it is they who destroy their authority, and their victims must establish a new government.
This is a sketch of the theory summarized more concisely and more eloquently in the famous second paragraph of the Declaration. In the rest of the document, Mr. Jefferson and his colleagues apply the theory. Having identified (fairly accurately, I might add) the basic principles of government, they show that the existing government has turned from the protection of their rights to destroying rights and that peaceful efforts to turn it back to its proper function have failed. They then take the radical syllogism to its conclusion, doing what the fundamental principles require when there is no other way to ensure that one has a government that protects one’s rights: they make a revolutionary change. And in so doing, they rest the future of American governments on the principle that all governments that exceed the powers properly granted to them may, and indeed must, be challenged.
The Appeal to the Past
Several of the grievances enumerated in the Declaration involved appeals to established and historic laws.
The first grievance notes that the King had “refused his Assent to Laws, the most wholesome and necessary for the public good.” The complaint refers to statutes passed by Colonial legislatures affirming the applicability in the New World of Magna Carta, the charter, first issued in 1215, that put in writing limits on the power of English kings. (Magna Carta itself was more conservative than it sounds: It largely reinforced limits on royal power that were already regarded as traditional even in 1215.)
Another grievance accuses the King of subjecting Americans “to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.” This complaint has its basis in Lockeanism, which holds that the powers of government may be exercised only by the institutions authorized by the people when they established the government—but the laws in question are not mere philosophical theories: they are the actual charters that had been established and had operated in the Colonies. The prevailing view in the Colonies was that these charters did not empower Parliament to regulate their internal affairs or impose taxes in order to raise revenue, but Parliament asserted the power to legislate for the Colonies “in all cases whatsoever”—and attempted to impose harsh laws.
The grievance about taxation without consent can be maintained on the basis of either Lockean philosophy or the English legal tradition. The Second Treatise argues that taxes may only be imposed by the taxpayers’ representatives, because if the people gave the power to tax them to officials they could not control, they would thereby abdicate their property rights and defeat the purpose of government. But the prohibition on taxation without representation is not based only on philosophical argument: it was a principle of English law secured by Magna Carta. The legislative power of Parliament had evolved from the principle that taxes could be laid only with the consent of the “common council” of the kingdom. And yet Parliament held itself empowered to impose taxes on the Colonies—and did so.
The right to trial by jury, of which the Declaration complains Americans were “in many cases” deprived, has no direct basis in Locke. But it was one of the means by which the English legal tradition and its offshoots in the Colonies protected individual rights. Jurors were to be individuals with “the same legal status in society” as the defendant (as the U.S. Supreme Court would later phrase it). In fact, Magna Carta’s phrase for what evolved into jury trial was “the lawful judgment of his peers.” So citizens could look to juries to protect them from oppressive laws. And indeed, the Act of Parliament depriving Americans of juries in certain cases targeted smuggling, which was economically important in Boston and protected by juries there.
How to be Radical and Conservative.
As these grievances, which fault the King for going against established norms, show, the Declaration’s radicalism and its conservatism fit together well. One reason for this is that Lockean principles require a government to adhere to the laws defining its powers and modes of operation.
But another reason is that the traditions the Founders valued were not valuable merely because they were traditions, but because they helped keep government a protector rather than a destroyer of individual rights. The principles by which the Founders got to the root of politics identified man’s need for a government that would protect his rights and not destroy them; because this is a real need, others had previously sought to ensure that English and Colonial governments would respect rights. As a result, there were traditional norms in place that served the purpose identified by the principles—and it was such traditions that these revolutionaries sought to conserve.
Radicals cannot take tradition as their ultimate evaluative standard—but they can, and should, value traditions that support their values.
Alexander R. Cohen/strong> is managing editor of the Business Rights Center and associate scholar. He holds degrees in journalism, philosophy, and law. Cohen previously served as an adjunct assistant professor at the John Jay College of Criminal Justice. He is currently pursuing a PhD. in philosophy at the University of Virginia.