The Constitution and the Pursuit of American Happiness
by Walter Berns
There are, as I count them, 164 countries in the world, and of these all but six (Great Britain, New Zealand, and Israel; Oman, Saudi Arabia, and Libya) have written constitutions. In that respect the United States is not unique. However, our Constitution is now 200 years old, and in this respect, we are very unique indeed. Of the remaining 157 written constitutions, over half have been written since 1974, a mere thirteen years ago. In a world where constitutions come and go with almost seasonal regularity, Americans have cause to wonder why ours should have lasted so long. To what can we attribute our good fortune?
Before vaunting our success, we should first of all acknowledge how close we came to failing. We exist as a nation, "conceived in liberty and dedicated to the proposition that all men are created equal," only because Abraham Lincoln (who spoke these words at Gettysburg in 1863) insisted that the government fight and win a bloody civil war to keep the nation one nation, and that one nation a nation so conceived and so dedicated. It is well to remember the terrible price exacted by that war. Excluding the Vietnam War, more Americans, north and south, lost their lives in the Civil War than in all our other wars combined.
Secondly, we owe it to the rest of the world to acknowledge the special advantages arising out of the peculiar geographic circumstances attending our beginning -- namely, the absence of powerful and hostile neighbors. What other new country could dare to budget the trifling sum of $163,078 for its war department, about one-third the amount budgeted to pay the interest on the public foreign debt? On our borders then were only Indian tribes and not, as in the case of Poland, for example, Germans and Russians. Not all those tribes were hostile and none was formidable. Incidentally, the total of that first budget, submitted in July, 1789, was $8,285,603.
Not only was the country geographically isolated and, as John Jay emphasized in the second of the Federalist Papers, physically connected, but, he added, providence had given this one connected country to "one united people -- a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, [and] very similar in the manners and customs." The country and the people "seem to have been made for each other," he said. In saying this, Jay was surely exaggerating the degree of unity, but perhaps not all that much, and especially not when compared with other countries coming into existence then or now. Except for the period of the Civil War, America has not had to grapple with the problems of today's Lebanon, for one example, or yesterday's Nigeria, for another. What is now Nigeria was a collection of a hundred "nation states," comprising some 400 ethnic and linguistic groups or tribes when the British made it part of their empire in the middle of the 19th century. Compared with Lebanon and Nigeria -- or Ireland, Belgium, and Yugoslavia -- we are now, and we were at the beginning, "one people." This fact was duly noted by Alexis de Tocqueville after his visit to America in the 1830s. Maine and Georgia were a thousand miles apart, he wrote in his masterpiece, Democracy in America, but their peoples had more in common than the peoples of Normandy and Brittany "separated only by a brook."
More important than history or geography were the men we call the Founders, the men who declared and fought for our independence and having achieved it, wrote and ratified the Constitution. They provided the decisive element in our success. They provided the principles forming the foundation on which we built. Many colonies have declared their independence, but which among them can boast of men like Washington, Jefferson, Franklin, Adams, Wilson, and the Morrises, Robert and Gouverneur? We had much to complain of against King George III, but here on this distant shore, he and his predecessors had provided the setting and the materials that allowed men such as these to prosper and gain prominence. As Edmund Burke argued repeatedly in the British House of Commons, these colonials were by no means the least of Englishmen, and they deserved to be treated with the best. The least of Englishmen? On the contrary, Talleyrand, the sometimes bishop of Autun and longtime French Statesman who knew everybody who was anybody -- Talleyrand, the leading statesman at the Congress of Vienna that restored Europe after the Napoleonic wars -- this Talleyrand once said that of all the men and women he had encountered during his long and illustrious career, the greatest was Alexander Hamilton -- greater, he said, than the younger William Pitt, the celebrated English prime minister, greater even than Napoleon! Measured against anyone, any time, the Founders were great men. Richard Henry Lee, who did his best to prevent the ratification of the Constitution, nevertheless had this to say of the men who drafted it: "America probably will never see an assembly of men of like number more respectable." From Paris, where he was serving as American Minister, Thomas Jefferson likened them to "an assembly of demigods." These men had a great deal to do with our success."
In the Declaration of Independence, the Founders pronounced the self-evident truth that all men are created equal -- not equally intelligent, equally beautiful, equally English, or equally white, but equally endowed by their Creator with the rights to life, liberty, and the pursuit of happiness. They also proclaimed that "to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." In 1787 and 1789, they wrote and then ratified a Constitution; a constitution ratified by, and with the consent of, the people of the United States -- "We the people of the United States." It was a constitution designed to secure the rights of life, liberty, and the pursuit of happiness. It is about the last of these, the right to pursue happiness, that I intend to speak today.
The Founders were very much aware of the fact that they were doing something that had not been done before. On the Great Seal of the United States, designed in 1776, they inscribed the Latin words -- you'll find them on every dollar bill -- Novus Ordo Seclorum, or in English, a new order of the ages. Still, while proudly claiming the novelty of their experiment in self-government, the Founders did not make the sort of mistake made by the French Revolutionists a couple of years later. They devised a new order, but not new in every respect. For example, they did not revise the calendar in an effort to cut themselves off completely from the past. In the last article (Article VII) of the Constitution they wrote, "Done" -- that is, this work was done -- "in convention . . . the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven and of the independence of the United States the twelfth." They continued to measure time from the birth of Jesus Christ. The French, on the other hand, in their first republican constitution, measured time from 1792; that was year one for them. Our Founders did not do this. They spoke of creating a "new order of the ages," but not a radically new order; not so new that they would cause unnecessary offense to many Americans. That may explain why we have had one constitution since 1787, and since 1789 the French have had five, not to mention a couple restorations of the monarchy, two empires, and a fascist regime during WWII.
"The new order" in America had something to do with the pursuit of happiness. It was not that the government should profess an interest in the happiness of its people because there was nothing new about that. For example, King Charles I was surely concerned with the happiness of his subjects, the people of England and Scotland. So concerned was Charles that he ordered them to find their happiness in the only way he thought happiness could be found -- within the communion of his Church of England. In the civil war that followed, many people died, especially in Scotland where the people tended to be Covenantors or Presbyterians, not Anglicans. In 1649, Charles lost his head -- literally. What was new in America was the effort to avoid religious fanaticism and religious strife and wars. What was new in America was that our Constitution recognized our natural and unalienable right to pursue a happiness that we define for ourselves. That was new!
Jefferson stated the principle of this when he said that the legitimate powers of government extend only to such act, or actions, that are injurious to others. "But it does me no injury," he wrote, "for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg." Writing fifty years later, in the last letter he is known to have written, Jefferson said this of the Declaration of Independence and its statement concerning the rights of man:
"May it be to the world, what I believe it will be (to some parts sooner, to others later, but finally to all), the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government . . . All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God."
It is interesting that Jefferson should have concluded this letter with this reference to saddles, boots, and spurs. Those words were first uttered in 1660 by Richard Rumbold, a soldier in the religious wars started by King Charles I, as he mounted the scaffold where he was hanged, drawn, and (after the fashion of the day) quartered. Jefferson, and the other Founders, obviously had memories of that war, and the causes of that war, and of other such wars. That is why they were determined to take religion out of politics. By doing so, they would remove a major cause of civil strife and, thereby, facilitate the achievement of peace.
Why has our Constitution endured for 200 years? Why; unlike Yugoslavia which has split by nationality problems; unlike Sri Lanka which now is at war over language differences; unlike Nigeria and Zimbabwe which are divided along tribal lines; unlike Ireland, Iran, Egypt, and Lebanon which are plagued by religious differences; why has the United States prospered under one constitution since 1789? The answer is that the Constitution recognizes only persons -- not language groups, nationality groups, religious groups. The exception was the Indian tribes who are still somewhat apart from the rest of us. With that exception, the Constitution speaks only of "persons."
The Constitution speaks not of male persons, or female persons. Not a word of the Constitution had to be changed before women could vote. The 19th amendment simply forbids Congress and the states to deny women the vote. Not a word of the Constitution had to be changed to allow Sandra Day O'Conner to become a justice of the Supreme Court, and not a word will have to be changed to allow a woman to become vice president or, God willing, president of the United States.
The Constitution speaks not of white persons or black persons. "Free persons," yes, "free persons , including those bound to Service for a term of years," but not white and black persons, not even slaves. The word slavery, in any of its forms, did not appear in the Constitution until the 13th amendment abolished it. Not a word of the Constitution had to be changed before blacks could vote. The 15th amendment simply forbids Congress and the states to deny black persons the vote. Not a word of the Constitution had to be changed to allow Thurgood Marshall to become a justice of the Supreme Court, and not a word of it will have to be changed to allow a black person to become vice president or even president. As I said, the Constitution recognizes only persons, not groups of any description. Anybody can be an American. As persons, then, under our Constitution we have the right to define and pursue our own happiness. The purpose of that right is peace, civil peace.
This was, and is, the purpose of that provision in Article VI of the Constitution forbidding religious tests. "[N]o religious test," it reads, "shall ever be required as a Qualification to any Office or public Trust under the United States." Some New Englanders complained that this "opened a door for Jews, Turks, and infidels," but, Madison noted, they were wrong to do so. Jews, Turks, and infidels can be as good Americans as anyone else. The first President, George Washington, gave this assurance to the Hebrew Congregation of Newport, Rhode Island in 1790.
"May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other inhabitants, while everyone shall sit in safety under his own vine and fig-tree, and there shall be none to make him afraid."
This was also the purpose of the First Amendment of the Constitution which forbids Congress to make any law respecting an establishment of religion or prohibiting its free exercise. By constituting a government on the foundation of the rights of man, and specifically on the right to pursue a self-defined happiness, we Americans took religion out of politics. We made it a private matter. We are entitled to find happiness within the Church of England, or the Church of Rome, or with the Presbyterians of Scotland, or among the Unitarians (Jefferson's preference), or in no church at all. To each his own "life style," as we say today, and if you are not happy with yours, you have only yourself to blame.
If the American government is forbidden by the Constitution to provide us with moral guidance, at least to the extent of not defining the happiness we have a right to pursue, does it follow that the government provides no guidance of any sort? Can government really be neutral with respect to the meaning of happiness? Is it not possible that no guidance will prove in practice to be guidance of a certain sort? Within wide limits, the American government leaves us alone to do what we choose to do, but by doing so, it leaves us free to do what we are by nature inclined to do. Assuming, that is, that we are by nature inclined to do something -- something that comes naturally, from natural inclinations. Well, it so happens that the political philosophers who taught us about natural rights also taught us, and taught the Founders, about our natural inclinations. In fact, they taught us that our rights derive from our inclinations. For example, John Locke, the English political philosopher whose principles and whose very words are embodied in the Declaration of Independence, wrote that men are by nature inclined to "pursue happiness," and, more precisely, that they are naturally inclined to seek the "conveniences and comforts of Life." This inclination, he said, derives from "the strongest desire God planted in men, and wrought into the very principles of their nature," that of "self-preservation.7
If so, if we are so inclined by nature, and if government protects the right of nature, then we can be expected to seek, to covet, the "conveniences and comforts of Life." Naturally, in practice, the right to pursue happiness becomes, as it did in the Constitution of the United States, the right to acquire property. Given the freedom, given the opportunity, people will do as Americans did, and do. They will devote themselves to the task of acquiring the "good things of this world," as Tocqueville put it, rather than "concentrate all their faculties on the contemplation of the next." They will do this especially in America where, as Madison said in the most celebrated of the Federalist Papers, number ten, the "first object of government [is] the protection of different and unequal faculties of acquiring property." Under the Constitution, the pursuit of happiness, in America, turns out to be equality of opportunity. As we know from our experience, equality of opportunity is compatible with -- indeed, it is a guarantee of -- inequality of result. By protecting the equal rights of unequally endowed people, the consequence is certain to be, as Madison said it would be, an unequal distribution of property and wealth. This inequality is, to repeat, a consequence of securing equal rights. Can we accept this, which is really to say, can the less well-endowed and therefore poorer accept it? The question occurred to Tocqueville in the 1830s. "Why is it," he asked, "that in America, the land par excellence of democracy, no one makes that outcry against property in general that often echoes throughout Europe?" The same question has been asked by many a historian, many a social scientist, and many a socialist today. Why is it that America has never known a labor party on the order of the British Labour Party, or a socialist party on the order of the French, Italian, Spanish, or Portuguese socialist and communist parties? Tocqueville's answer would have astounded Karl Marx. Tocqueville wrote, "It is because there are no proletarians in America." No proletarians, no class struggle. No class struggle, civil peace -- again, civil peace.
Why are there no proletarians in America? There are poor people and rich people, but the American rich -- unlike the rich of the past; unlike the French aristocracy, for example -- have no interest in keeping the poor down. Henry Ford wanted us all to be able to afford to buy his automobiles and the Humbles wanted us to be able to buy their oil. Also, the American poor, unlike the poor of the past, have no interest in bringing down the rich. To do so would require them to destroy the liberty that allowed the rich to become rich and by which the poor want to become rich themselves.
The exception to this, and it serves to prove the rule, was in the pre-war feudal South, a fact observed by Tocqueville when he first crossed the river from Ohio to Kentucky. Writing to his father back in France, he spoke of the difference between the free economy in Ohio and the slave economy in Kentucky:
"For the first time we have had a chance to examine the effect that slavery produces on society. On the right bank of the Ohio everything is activity, industry, labor in honored; there are no slaves. Pass to the left bank and the scene changes so suddenly that you think yourself on the other side of the world; the enterprising spirit is gone. There, work is not only painful; it is shameful, and you degrade yourself in submitting yourself to it. To ride, to hunt, to smoke like a Turk in the sunshine: there is the destiny of the white."
Tocqueville was mistaken about the amount of work being done in Kentucky -- by no means was every white person riding, hunting, and smoking like a Turk in the sunshine -- but his larger point stands. In sharp contrast with the situation in Ohio -- indeed, as he makes clear in his book about American democracy, in every part of the North -- the life of the southern white did depend on his being able to keep the poor down, the poor blacks, and his destiny was to be brought down by those poor."
Why are there no proletarians in America? Because the Founders had gone to school with John Locke and Adam Smith, and learned the political importance of The Wealth of Nations. Wealth would be created by the productivity of the people, and that productivity would be enhanced by protecting equality of opportunity. From Adam Smith they also learned something about the importance of science and the "gradual improvement of arts, manufactures, and commerce." Thus, just as in the Constitution they prohibited religious tests for office holding and laws respecting an establishment of religion, they gave Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." America was to be officially separated from any particular church, but it was to be joined to science and industry, and the things promised by science and industry.
Why no proletarians in America? "The prosperity of commerce," writes Alexander Hamilton in Federalist 12, "is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares." The reason for this he explains in what follows:
"By multiplying the means of gratification, by promoting the introduction and circulation of the precious metals, those darling objects of human avarice and enterprise, it serves to vivify and invigorate all the channels of industry and to make them flow with greater activity and copiousness. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer -- all order of men look forward with eager expectation and growing alacrity to this pleasing reward of their toils."
Why no proletarians in America? Economic growth and the fair prospect of sharing in it. Economic growth, the prospect of it, serves to allay resentment and, thereby, to promote civil peace. With civil peace comes the opportunity to pursue your own happiness. In this way, government provides the conditions of happiness, and as I said earlier, if you are not happy in this country, you have only yourself to blame.
Surely the government does not get in your way. On the contrary, it is -- Madison says it is -- the obligation of the government to protect those faculties by which you pursue your happiness. I referred to this passage in Federalist 10 earlier when I emphasized the reference to property. Here I want to quote the passage in its entirety:
"The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors ensues a division of the society into different interests and parties."
No doubt, the emphasis here is on property, the faculties necessary to acquire it and the interests that arise out of it, but he acknowledges other faculties and the objects of their use, and other interests, and other parties. For example, in the very next paragraph Madison speaks of religious interests and what we might call intellectual interests. Happiness can be found in a great variety of pursuits. The government that is obliged to protect the property faculties is also obliged to protect the faculties engaged in other pursuits.
Clearly, when given the opportunity to pursue happiness as they see fit, not all people will at all times, or under all conditions, devote themselves exclusively, or even primarily, to the acquisition of "the conveniences and comforts of Life." Surely, some men have an acquired taste for, perhaps even a natural desire for, goods other than material goods. America's business may be business, as President Calvin Coolidge once said it was, but it is not only business. In fact, and this too the Founders may have had in mind, compared with all the other countries now comprising what we call western civilization, America is by far the most religious. The right to be religious, that too, is protected by the Constitution of the United States.