Executive privilege should be reserved for the most compelling reasons, but in the absence of Congressional pressure, the power will be abused.
Editor’s Note: This essay appeared in Cultivating Virtuous Citizenship?: A Law and Liberty Symposium on the Ryan Foundation’s American National Character Project.
In the beginning, Americans got it right. They did not fall for the false choice between the comfort of the least and the potential of the best, sometimes posed as a choice between the common good and individualism. Instead, the founders envisioned a productive people who were at the same time a caring people. They identified social progress with realizing the potential of the best. Lately social progress tends to be identified with the comfort of the least, which is a dumbing down of the idea of freedom.
As a result, our government has turned away from relying upon creative and productive individuals to advance society and instead looks at citizens first of all as wards of the state (the disadvantaged) and secondly as lucky (the advantaged; the “you didn’t build that”). The problem is, a society can care for the least of its members only when it fosters the productivity of the best of its citizens. Our upside down view of praiseworthy character threatens to undermine the foundation of social progress in good character, in an elevated idea of freedom.
We can appraise the chances for restoring a healthy national character by revisiting the elements the founders thought to be fundamental to national character. And none of those elements was more important than conscience. “Labor to keep alive in your breast that little spark of celestial fire called conscience” was the lesson eleven-year old George Washington transcribed and by which he lived. Thus, after the new government was established, he wrote to the Baptists in Virginia, “For you, doubtless, remember that I have often expressed my sentiment, that every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshipping the Deity according to the dictates of his own conscience.
He assured the Presbyterians that, “While all men within our territories are protected in worshipping the Deity according to the dictates of their consciences; it is rationally to be expected from them in return, that they will be emulous of evincing the sanctity of their professions by the innocence of their lives and the beneficence of their actions; for no man, who is profligate in his morals, or a bad member of the civil community, can possibly be a true Christian, or a credit to his own religious society.” To the Quakers he preached that “Government being … instituted to protect the persons and consciences of men from oppression, it certainly is the duty of rulers, not only to abstain from [oppression] themselves, but, according to their stations, to prevent it in others. The liberty enjoyed by the people of these states of worshipping Almighty God agreeably to their consciences, is not only among the choicest of their blessings, but also of their rights.
To the Hebrew Congregation in Newport Washington extemporized that “The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy—a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. [August 1790] And to the German congregation in New York he explained that “The establishment of Civil and Religious Liberty was the Motive which induced me to the Field; the object is attained, and it now remains to be my earnest wish and prayer, that the Citizens of the United States would make a wise and virtuous use of the blessings, placed before them.” The clear point: the goal was not merely free expression but social benefit.
What Washington considered a wise and virtuous use of the freedom of conscience was spelled out in the “general orders” issued to the troops at the close of the war, when, among other things for which they fought, Washington pointed out “protecting the rights of humane nature and establishing an Asylum for the poor and oppressed of all nations and religions.”
Ultimately, therefore, the vision of self-government was a vision of a conscientious people, exerting themselves with enlightened regard for the rights of others while reserving from government the prerogatives of conscience. Thus it is that James Madison in 1785 could identify conscience as the foundation of all the rights for which the revolution was waged, maintaining that the “freedom of conscience” is not only “a right towards men” but “a duty towards the Creator.” “This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe.” And this is what Madison had in mind when, in a 1792 essay on property rights he identified the first right as the “property” each person had in his or her conscience.
This commingling of property with conscience – the material with the spiritual – was neither paradoxical nor accidental. It reflected instead the settled conviction that human beings, in order to perform at the highest levels – that is most productively – required to enjoy the greatest possible independence compatible with social order. And within that context they could then be counted on to act with optimum benevolence towards one another. They would first become themselves the guarantors of their own well-being, while secondly offering generous care for those in need.
This is what Americans got right in the beginning. They laid the foundations of their political principles in the assured conviction that providence had provided the necessary guidance in the form of conscience to fulfill their highest expectations for human flourishing, what Washington called the “empire of liberty.” Freedom seen in this light is uplifting, creating a social up-draft. While the “freedom from hunger” mantra emphasized in the 20th century has created a social down-draft, in which freedom looks more and more like full bodies with empty souls. The question: can America still be worthy of imitation if its national character does not point to the fulfillment of spiritual needs as its highest priority?