The Real Founding: Long Gone

Last week, I had the privilege of lecturing on the Northwest Ordinance of 1787. Passed unanimously by Congress in New York on July 13, 1787, this law never ceases to inspire me. As our own venerable John Willson has argued many times, it is, quite possibly, the most impressive republican law ever passed. Protecting religious freedom and common law rights, it also called for good relations with the American Indian, for a prohibition of slavery north and west of the Ohio River, and for the prevention of empire as the republic expanded West. My favorite provision is the untempered defense of property rights in the second article:

And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.

Contrast this for a moment with what the French Revolutionaries passed only two years later in the Declaration of the Rights of Man and Citizen, article III:

The source of all sovereignty resides essentially in the nation. No body, no individual can exercise authority that does not explicitly proceed from it.

At first reading, the second article of the Northwest Ordinance appears to be a statement about mere possession. I own this; it’s mine; leave it alone; I obtained it through good faith; back off.

It is these things, of course, but it’s so much more.

Bluntly put, it claims that we have a right to associate one with another without the political sphere interfering in that agreement. This means that I can start and conduct business with another person. But, it also means Winston and I can start The Imaginative Conservative if we want. As an example.

It means also that I can, with the free consent of another, form a school, a soup kitchen, a college, a self-help group, a family, a social club, a homeless shelter, a fraternity, or a church.

It is utterly constitutional in that it restricts and restrains and limits what the political sphere can do. By implication, it argues that politics has its place, its place is not in things not political.

No greater contrast with the insanity of the French Revolution need be made after this, frankly. From the beginning of our independence from the British Empire, our American “revolution”–at least as the representatives of thirteen relatively sovereign states in Congress understood it–promoted the rights of the human person within community, not the community subsuming the individual human person to its wants and needs and desires and perversities.

But, we don’t have to contrast it only with French Revolutionaries. In Philadelphia, at the same time Congress passed this noble law, another set of Founders were writing an entirely new constitution to replace the Articles of Confederation. Interestingly, just as Congress prohibited slavery north and west of the Ohio River, the other Founders were beginning their debates about the justness of slavery in a republic. As every reader knows, these founders allowed for three compromises dealing with the issue, but feared to name the thing itself.

After a series of brilliant arguments in favor of abandoning the “peculiar institution” as it would soon be known–led by Rufus King, George Mason, John Dickinson, and a few others–the majority at the constitutional convention allowed it, seeing the right to property not as association and community building (per Congress in New York) but as power and control over another. Some of the comments are worth repeating:

Mason, August 22:

Every master of slaves is a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes and effects providence punishes national sins by national calamities.

The day before, Rutlidge had stated ominously, “Religion and humanity had nothing to do with this question. Interest alone is the governing principle with Nations.”

Again, to paraphrase Dr. Willson: there was no single founding, there were a number of foundings. Clearly, the founders of Philadelphia were not the founders of New York in the summer of 1787. It is worth repeating: for Congress, property meant association; for the constitutional convention, property meant possession and power over another.

Today (May 17), I was beyond horrified to read Senator Charles Schumer’s statements about one of the founders of Facebook who has rejected his U.S. Citizenship for a variety of reasons and is now residing in Singapore.

Bloomberg reported today (again, May 17):

“Eduardo Saverin wants to de-friend the United States of America just to avoid paying taxes,” Schumer, a New York Democrat, told reporters today. “We aren’t going to let him get away with it.”

Schumer’s proposal would empower the Internal Revenue Service to impose a 30 percent capital gains tax on future investment gains of wealthy individuals who the agency decides renounced their citizenship to avoid taxes.

It also would bar such people from re-entering the U.S. Schumer said he will advance the legislation “as quickly as possible.”

“This tax-avoidance scheme is outrageous,” Schumer said. “This is a great American success story gone horribly wrong.”

There are so many questions and concerns this raises, I wouldn’t even know where to start.

But, should I really be surprised? We have a government that poisons nearly every single thing it touches. Schumer is bad but he’s no worse, really, than 95% of our politicians. Just look at what we’ll most likely be facing in November: a contest between Caesar and Mr. Corporation. Really? Out of a population of ca. 315 million, these are the best persons for the job?

And yet, if Schumer is educated at all, it’s in the ideals of French Revolution and not the American one–at least not the one in his own state of New York in 1787.

To make an outrageous and huge claim, it’s hard not to wonder if we reached the height of the Republic on July 13, 1787. Listening to loudmouths like Schumer, how can we not to believe that it’s all been downhill since that July so long ago.

I long for that summer, dreading the forthcoming one . . . .

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