A republican government is an exercise in human optimism, and patriotic republicans must engage in an unremitting struggle against that human entropy we used to know as Original Sin.  Any American citizen today can quote, or at least dimly recall, Washington’s declarative challenge in his Farewell Address:

Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports.  In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens.

This rule applies not only to republics, added the retiring president, but “extends with more or less force to every species of free Government.”

For Washington, then, a republican government does not reside in constitutional form alone but rests on the virtue of its citizens.  Patriotic rhetoric aside, we Americans have never been a particularly virtuous people.  Like most peoples, we have got drunk and blasphemed, fornicated and philandered, lied, cheated, and stolen.  Puritan New England was notorious for premature births.  If, however, we were hardly better than the French, we were no worse, and if we were not distinguished for virtue in the Christian sense, we had more than enough virtù in Machiavelli’s sense—the courage and toughness to take control over our own lives.

By republican government, I do not mean a nonmonarchical state, though that is the most common sense, since many monarchs have presided over constitutional orders that limited the ruler’s power far more effectively than either the American or the Athenian democracy.  Differences in political form, as both Machiavellians and Aristotelians understand, are less important than differences in character, and, in its essence, the term republic is opposed not to monarchy but to tyranny.  Tyrants rule according to the whim of the sovereign or of the class that keeps the sovereign in power, whether that class is a military elite, the Communist Party, or the fickle mob.

A republic, by contrast, is governed by law and custom, and the rulers of a republic may not and cannot violate the constitutional order in a good cause.  Although he had fought a revolutionary war to free the American colonies from British rule, Washington was not particularly averse to the English system, and he would have conceded that, despite George III’s exercise in personal rule, the British monarchy could generally be called a free, if not a popular, government.

A republic, in the wider sense in which I am using the term, is equivalent to Aristotle’s politeia, a constitutional order based on nomos, a word that includes both written laws and inherited traditions.  A shorthand way of expressing this is John Adams’ Burkean maxim, “A government of laws and not of men,” though the word laws might lead the unwary to conclude that, since a democratically elected legislature can pass any law it likes, such a legal commonwealth could overturn the social, moral, and political order (as Mr. Blair is doing in Britain), so long as the government continued to win elections.

Both Adams and Burke would have been appalled by such a suggestion.  As Burke said early in his career: “Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to government.  They harmonize with each other, and give mutual aid to one another.”  As readers of Russell Kirk will know, prescription is a legal term referring to an uninterrupted possession (of property or right) going back to time immemorial; thus, law and prescription together form the basis of any constitutional order.

Prescriptive rights do not always find their way into written laws, at least not until they are challenged and require a defense.  The founding decades of the American republic—roughly from the Stamp Act crisis of 1765 to the ratification of the Bill of Rights in 1791—represent such a challenge.  Americans demanded both the rights they thought they enjoyed as Englishmen and also the rights to which they had become accustomed as American colonists.  The government of Britain had not only threatened the existing colonial charters but pushed its authority to censor the press and, by using the legal fiction of general writs, invaded shops, warehouses, and even homes in search of contraband and untaxed goods.  Neither the king nor the parliamentary leadership regarded these actions as tyrannical—which, indeed, they were not, since unrest within Britain was repressed by similar measures.

The men of Massachusetts, however, were a troublesome lot, and, ever since the Stamp Act, their leaders (the Boston Patriot Committee) had been fomenting rebellion by forming and drilling militia bands throughout the state.  As Americans, they had the habit of defending themselves against the attacks of the French and their Native American surrogates.  Unlike their compatriots in England, then, Americans regarded the possession of firearms as a traditional right, and their stockpile of arms at Lexington was only the next step, dictated by logic and necessity, in their plot to defend themselves from the British.  The political struggle turned into armed conflict when British forces were sent to seize the arms stockpiled by the militiamen.

The Declaration of Independence lists some of the grievances in its more important, but less read, second part.  Some of the most glaring have to do with political administration.  The king is accused of not providing justice by his refusal to assent to useful laws and by his general interference in local legislation and courts, which includes the subordination of judges to the governor and the denial of trial by jury; he has similarly interfered in the colonial legislatures and taken away charters—in other words, he has deprived the colonies of their rights to govern themselves, and he has denied the traditional right to petition for redress.  He has taxed the colonies without consulting their legislatures, quartered troops upon the citizens, and “made the military independent of and superior to the Civil Power.”

This is only a summary, but it gives us the flavor of their concerns, which are basically fourfold: a simple abuse of power (quartering troops); economic interference (taxation and interference in international trade); a denial of the legal rights of Englishmen (trial by jury); and the erosion of the rights of the colonies to govern themselves.  When the leaders of the rebellion came to form a government, they took for granted that all the basic rights of Englishmen under common law would be preserved, but they did take care to ensure the autonomy of their newly independent states: As Article II of the Preamble of the Articles of Confederation states,

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

This article precedes the declaration that the states have formed a “firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare.”

After stipulating the limited responsibility of the new government, the signers concluded “that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.”  Note, please, how inviolable observation of the Articles is linked with the perpetuity of the union.

The union was not, after all, perpetual any more than the Articles were inviolably observed.  When delegates were sent to Philadelphia in 1787, they were instructed only to amend the Articles as might be necessary, not to draw up a new constitution.  Whether they did right or wrong in violating those instructions is now a moot point, but the Articles remain important as a means of interpreting the Constitution.  We know the signers at Philadelphia wanted to strengthen the bonds of union, but, since Hamilton ran into such stiff resistance, both at the Convention and afterward, we are not justified in supposing that any phrase in the document gives carte blanche for expansion of federal power.

The Tenth (and most vital) Amendment of the Bill of Rights makes this clear by reserving to the states and to the people all powers not specifically enumerated in the Constitution, but the Bill of Rights also addresses other concerns—or, rather, fears—that an ambitious federal government might begin acting like king and Parliament.  The Congress was not to interfere in either establishing or hindering religion (by which they could only have meant Christian sects), prevent the press from informing the people about political matters, or restrain the people from assembling or petitioning their government.  Nor could the new government quarter troops or deny the people the right to arm themselves and form militia companies for their own defense, either against a hostile enemy or against an abusive government.  They also specifically deprived the federal government of the power to interfere in the operation of justice (by denying trial by jury or due process) or to break into shops and homes looking for contraband.  Just to make sure they had not left anything out, they threw in the Ninth Amendment, which stipulates that the enumeration of any right is not to be construed as excluding any prescriptive rights they had forgotten to mention.  This, in other words, was it, a line in the sand that the federal government could not cross without violating the terms of its creation and existence.

Most Americans with their eyes open understand that, from almost the beginning, the federal government has unconstitutionally expanded its powers.  The campaign began, as Jefferson knew it would, with the federal judiciary, but, starting with Lincoln, American presidents labored effectively to convert the constitutional executive into a popular dictator more like Caesar or Cromwell than like George Washington.  Nothing daunted, the Congress of the United States has passed millions of pages of legislation illegally and unconstitutionally expanding the powers of all three branches of government at the expense not only of the states but of the people, who have been stripped of their prescriptive rights.

To enumerate even the most grievous instances would require several volumes, but the 14th Amendment—its illegal passage, unconstitutional provisions, and ever-widening application—can serve as the symbolic nutshell to encapsulate the ongoing campaign to turn the Bill of Rights on its head.  What had been a barrier to federal encroachment upon the rights of the states and the people is now the justification for the unconstitutional amalgamation of power at the center.

But, as I said at the beginning, many prescriptive rights are taken for granted.  No one in the 1780’s would have dreamed that marriage was anything but a compact involving a man and a woman or that an unborn child could be killed with impunity or made the subject of scientific research.  No one in his right mind supposed that serial rapists and killers deserved any therapy less stringent than a noose.  And no one was so wild enough to imagine that the government had the power, much less the right, to determine how children were reared and educated, to confiscate a significant part of our income before we receive it, to grant special rights and privileges to aliens.  They did, however, think that one of the primary functions of their government was to secure the common defense by guarding the borders against invasion.

Then what happened?  Or rather, who did this to us?  Who enslaved a free people and imposed a heavier weight of government upon them than George III or even Louis XIV would have done?  The answer is: We did.  We elected the criminals and clowns who have treated the American people and their Constitution as if they were Gotham City under the combined attack of all the comic-book villains ever imagined.  We not only elected them, but, when they violated the laws and puffed up their power, we returned them to office or, at best, replaced the Joker with Poison Ivy.

Some readers will object to these illustrations from Batman, but, in an age when literacy has gone the way of virtue and religion, it is a futile exercise to quote Aristotle or Shakespeare.  The virtue—and the virtù—has gone out of us as a people.

The failure of the American republic is not merely a misunderstanding—though bad liberal and leftist ideas have contributed to the problem, and, since this failure is a reflection of our national character, the way back does not lie in a political process that swaps new lies for old or alternates power between the Capone Gang and the Northside Mob.  The process of restoration, if it is to take place, lies with each of us.  If we begin to live as free people in our own minds and our own lives, if we refuse to be the pawns either of government or of party, if we choose our friends from among the free remnant and, in their company, bring up free children who shun the poisonous propaganda that passes for American history and moral philosophy, we might hope that our American grandchildren—if there still are Americans 30 years from now—will have the virtue to take back the power their ancestors surrendered.