Barry Shain on Equality, Rights, and Federalism

American Visions and the Competing Stories of the Founding

What are the competing visions of what America is and its purpose?

If we use the sort of the templates of the kind of vision that we associate with Lincoln versus the one we associate with Douglas, there's two basic competing stories or narratives. I added a third because I think the 1619 project has introduced a a amendment to both.

And in terms of the founding or at least the 1776 years, I think the 1619 project gets part of it right.

What part does the 1619 project get right?

That in 1776 there were almost no one I can imagine who believed what Lincoln claimed was the case in 1776. That is that the Americans were claiming that all men were naturally equal in both pre-social or outside of social circumstances and inside.

Why don't you explain that a little more? If someone is uninitiated and doesn't understand, they're a new immigrant and you're trying to tell them what America is about and they've been exposed to the 1776 commission a little bit, what are they believing?

Well the 1776 folks, we'll just call them a competitive project, take from Lincoln the idea that in the Declaration of Independence there was the belief, goal, aspiration of its authors. And it's not just Lincoln, it's not just Jefferson, but the Continental Congress believed in the idea of human equality in society.

It's just factually wrong.

Equality, Christianity, and the Meaning of Natural Rights

But doesn't it say all men are created equal? That's the retort you'll get. So how do you explain that?

It's not a new concept. It's not a new claim. That what's true in some abstract metaphysical, and again for Christians, it's not even controversial. Human beings are created equal in God's eyes. It says nothing about society.

It says nothing about political life. It says nothing about gender relationships. It's about a relation between man and God. And Christianity has held this for at least, probably close to, at least 1 ,500 years.

What did Jefferson mean, though, then when he wrote all men are created equal? Was he thinking in terms of what you just described or something else?

It's hard to know what anyone's thinking inside their head, but the basic claim by everyone who was alive and writing then and shortly after was that the main claim being put forward was that North American British colonists were equal to, in fact, a metropolitan British.

But why did they make the claim that, in fact, all men are created naturally equal? It was an antecedent to the claim about the equality of British colonists in North America and metropolitan British having equal rights to self-government.

I mean, the basic tension in America, and it's been at least since the end of the 18th century, I don't think it was true before the end of the 18th century, but at least since the end, the very late 18th century, America sort of has two competing narratives of what the good is.

One vision is that of associated with liberalism, that individuals should be awarded rights or do have rights that should be protected from the community, from the majority. The other vision is that what was most important in the time for most of American history is, in fact, democratic majoritarianism, democratic right of corporate self-government, and nothing has changed.

The elite basically, I mean, when we talk about, right now, Israel or Trump, that they're anti-democratic, it makes no sense. We want two things to go together and they're inherently in tension. Sometimes they can be amalgamated, more or less, but the two visions are the most important moral good is, in fact, or at least most important political good is self-government.

The other most important good is, in fact, protecting individuals against that same democratic ethos.

What contributions to the United States did Jefferson and those who crafted and approved the Declaration of Independence give to us then? Because the story now that many tell is that they gave to us this egalitarian notion of freedom and democracy.

It's just you can't use the two words together. I mean, that's already a mistake. So, I mean, we amalgamate and conflate things that are different. So, liberal individualism, which I think is, in fact, a kind of breakdown product in Christianity.

I mean, for me, liberalism in its origins takes Christian idea of equality and then removes God and makes claims about, I mean, most of our thinking just doesn't make sense if you start unpacking it. But the claim is that, what did Jefferson give us?

He gave us, or what did the Declaration give us? Well, it depends. You know, it can be answered a number of ways. The Declaration is not an important document. It was an argument, a legal brief, as to why European political entities and economic forces should recognize the new colonies as an independent nation.

It didn't have a great meaning. It's a brief that was meant for a limited duration and a limited purpose. Lincoln and others, and began mostly in the beginning of the 19th century, breathed into an entirely new philosophy that, in fact, was not part of the 1776 world.

So, what did it give us? It gave us that vision, which, for my mind, is, in fact, one of the greatest pathologies that, in fact, was basically inflicted on the world, equality. Everything that one is frequently going to fault in a contemporary world emanates from this, in fact, this insane, absurd notion.

There's nothing equal about human beings. If God loves us equally, so be it. Prove it. You can't. Can you prove it's false? No. Every day you walk outside and you say, human beings are equal. Is there anything more unequal than human beings on any dimension?

Intellectual? Physical? Beauty? Moral? Conscious? No. We're radically unequal. And the claim of equality, almost all of our politics now is poisoned by this fundamental sort of logical conundrum. If human beings are equal, why are the outcomes so unequal?

Well, that's easy to explain. It's because of social circumstances. It's because of bias. It's because of limited economic opportunities. You need a story. You need explanations as for why human outcomes are so unequal, if we're naturally equal.

Well, the problem starts with, we're not naturally equal in any way that, in fact, has to do with social, political, gendered relation, whatever you imagine. If we're metaphysically, on some grounds, equal in God's eyes, that's for belief, not for a statement of fact.

When Jefferson penned those words, what was the state of society at the time, as far as this notion of equality? I mean, what kinds of hierarchies were around, just for people who.

Might be ignorant about this? Every one you could imagine, including among white men, radical inequalities. America was more equal than most places, but still, the inequalities between just white men, inequalities between men and women, inequalities between chattel slaves, inequalities between indigenous peoples and the white population.

I mean, all there is is inequalities of every imaginable kind, and if one were to believe Lincoln, which one shouldn't, if one were to believe Lincoln, these people are hypocrites and liars of the most intense variety.

Lincoln, the Declaration, and the Rise of Victimology

Let's talk about Lincoln a minute, because he's a hero to a lot of modern Claremont-types, conservatives, that they call themselves. You argue that he changed the meaning, or he used the Declaration's line for his own purposes.

Where did he get that notion?

If you look at narratives and historiography, many of the stories we tell are reflections of the need of a time, and he had a need to fight a war, or to prepare to fight a war. Lincoln's view was that the claim of equality was put in the Declaration so that it would change America in the future.

He doesn't claim, even Jaffa doesn't claim that, in fact, Lincoln.

Believed that this was historically accurate. Let's pick an example today. You have this LGBT lobby wanting equal rights, they say, for transgender people, and they will utilize this narrative for their own advantage.

Do you think Lincoln would even conceive of.

How far this has been taken? My guess is, and it's only that, no. It doesn't matter that he doesn't know how far we've taken. Dead people can't control the future. It was his words that led to a world where everything is being dissolved, and the claim of equality basically is undermining most, if not all, American institutions.

We basically used to be a country of strivers, now we're a country of victims. Why are we victims? Because we're equal, naturally, but our outcomes are unequal. It has to be explained by something, and it has to be explained by some sort of political, social, or economic evil to explain why everything doesn't come out.

This is the whole thing about the equity grievance business. They say, we are equal, the outcomes are unequal, so we actually don't really care about equality. We want equity, which is, in fact, equal outcomes.

Again, this is driven by the language that, at least, if not driven, it finds its foundation in the language of Lincoln.

The Declaration has been twisted to give us this narrative that we've just been discussing, but there's also some things to be proud of, or at least to profit from, that are true and valuable in the Declaration of Independence.

What's a positive that the Declaration put forward is one that I think is unambiguous. It's a defense of self-government, popular self-government, which at the time was colonial and which eventually would largely culminate in state-led self-government.

Americans have had elites which are hostile to popular self-government, and they always have wanted to try to control it. Their best answer was called the Constitution. It's grown from basically a secondary government to the one that's now dominant, and which we're willing to almost kill each other over who controls the executive bureaucracy.

Again, the Declaration puts forth a positive vision of not the liberal individualist vision which Lincoln created, fostered, and helped disseminate, but the vision of corporate self-government, which goes back to the early 17th century in Virginia in one form, but it's not something that wasn't also equally true of New England.

British Roots, Reformed Protestantism, and Localism

Is this tracing right back to Great Britain, or is this something innovative?

I think almost everything in America is, in fact, not innovative, which is one of the problems of so-called conservatives. Conservatives basically view human beings as having limited intelligence, trying to understand something remarkably complex, called society.

Given their lack of confidence in human creativity, innovation, they look towards things that have been tried and true, and America mostly finds its origin in two things, British institutional, governmental, and constitutional development, and Reformed Protestantism.

Reformed Protestantism and British self-government at the local level are overlapping. The American history of Congregationalism, not at the Church of England, but Congregationalism and Reformed Protestantism were hyper-localist.

When you talk about localist, just because some.

People watching this might not know what you mean by that, could you define it?

The understanding of the good, of how human beings should behave, is defined, understood, and put in practice at the most local level. The Catholics have a term for it,.

They just don't happen to follow it. Is that the subsidiary doctrine? We're in 2023 now. Have we drifted from Jefferson's vision? I know the answer, but I would be curious to hear from you, in what ways have we drifted, and what are the steps that would need to be taken to come back to this more localist and federal idea?

We're increasingly moving in a direction of, so everything, all of our politics has become remarkably energized at the national level, because most incisions are being made at the national level, and frequently not even by a legislative body, but by executive bureaucracies.

My vision of America, I suppose is maybe somewhat idiosyncratic, is that we need to return to, again, our roots and most of our history, which are federal, and where most decisions about what the human good is, and how one should live, are made at the most local level.

That's uniquely, or I shouldn't say unique, but it's quintessentially American.

It may be unique. Maybe Switzerland would basically come close to it, a historical England, more or less, but it's probably what makes America most exceptional is our localism and our federalism. Since the founding of the National Republic, the elite had never wanted it, so the two people we celebrate most as the authors of the Federalists, all they want to do is get rid of localism.

This has been a constant tension in America between two systems of government. Democracy, on the one hand, and our elites are oligarchs. They basically want to control what the people, and slavery is in fact this sort of fulcrum.

It would end up being the fulcrum because one of the things that localism has trouble dealing with and responding to or controlling are aberrant moral aspirations like slavery. So if there was a one-size-fits-all.

Government in 1619 that could have stopped it, that would have been, I think in the minds of many today, preferable. But there wasn't, and that was part of the blessing and the curse,.

Is what you're saying. There wasn't one in 1776 either. But the problem is, if you want people to be self-governing, if you want people to make decisions about what the good is as they understand it, how do you stop things which we generally find to be invidious and or which elite find themselves uncomfortable with?

The answer is basically to do as much as possible to undermine local self-government and have elites impose the right and good on people. And I don't find that to be particularly American. Right now the entire world, not the entire world, but big chunks of the world are torn right now with the same division between oligarchic forces and democratic forces.

What's going on in Israel, Israel is in fact not terribly different than what's going on or went on and will go on in the United States, is that you have people, elites, who think they know what is right and good, which they believe it's their right and duty to impose on the more benighted and less enlightened.

This American idea or this unique thing we had going of localism, federalism, that you just made a point, whether it was uniquely Southern or not, it ended up becoming.

More preserved in the South. I don't think it was uniquely Southern, but I think the Civil War and slavery ended up with ultimately by the end of the 19th century, if not the middle of the 19th century, therefore from then on, the South became the defenders of what had been universally.

American. Lincoln-Douglas debates are where you think this plays out most clearly. Not so much.

The most famous, but the one a year before in 1857, not 58. What were the arguments between them and the evidence? It's pretty simple. Lincoln argued that in fact America should be and maybe was, and the Declaration plays a pivotal role in this, a polity dedicated to and created to protect individuals and their rights claim.

Douglas argued that the Declaration in America was developed as a polity with the aspiration to protect and encourage local self-government, popular self-government. They're fundamentally a liberal and democratic ethos in their two contending stories, and we try to amalgamate them.

It doesn't work real well, and for conservatives, the challenge is how to endorse, accept, and revivify the Douglas vision without at the same time accepting and being saddled with the moral stain of slavery.

But it's not just slavery. Every issue we confront, it just happens that slavery is the sort of most glaring, but every issue you want to argue, talk about, transgender rights, women's rights, the rights of, just add rights and then add something to it.

The national elite who control the national, I don't like the term federal government because I think it's confusing. We have two, the federal government is actually the national government along with state governments, and we use the word federal, it's confusing.

They take it upon themselves that their job is to constrain popular majorities from doing things they find inappropriate and unacceptable.

Civil Rights, Federalism, and the Confusion of Rights

Localism and federalism and this uniquely American thing that now southerners are more likely to defend. Who would be, like if we had a list of good guys, bad guys, right? Lincoln's a bad guy. Calhoun.

Calhoun and then who else?

Clay was kind of an intermediate figure because he was willing to concede that natural equality but that there was no instantiation in civil life. I mean, part of my argument in the paper, some of which was from an earlier essay, I didn't put in this one, is that two of the big changes that the Declaration helped endorse and helped advance.

One is the confusion and conflation of civil and natural rights. They were distinct and they, after the Declaration, it wasn't alone but there was a movement. In the end of the 8th century, the world's changing radically.

And one of the changes is the conflation of civil and natural rights, which had always traditionally, and would up until the middle of the 9th century, mostly be distinct. But the other big thing that the Declaration helped advance, not for the good, is the idea that rights stand alone without duties.

One of your questions when you put forward is what is an inalienable right? One, they're rare. There probably were only two. But we don't even understand what the word means anymore. The idea of an inalienable right was tied to what was called a perfect duty in the moral discourse of the time, a duty you could not abrogate, which is why the right you could not alienate.

Still in England, they used the term inalienable in its proper use. So if you have an inalienable piece of property, you can't sell it. So the way that these folks have reconstructed the world, we've left out a figure, John Locke.

So the story they kind of tell, it's not accurate. It's not even intellectually coherent. But it's logically coherent. John Locke wrote the Declaration. So John Locke, Jefferson basically copied the Declaration from John Locke.

What the Declaration means is what Straussians mean, what John Locke meant. And that the Declaration informs the Constitution. Almost none of that is true. But that's their construction. And where does it come from?

I mean, at least in part, it became ever more prominent, I think, free in the after World War II. We need a story with which to compete with fascism and Marxism. They created a story, a narrative, basically a hot and cold war narrative that makes America uniquely liberal or particularly liberal, which tends to undermine democracy and tends to basically, and this is where the 1619 Project more or less gets it right.

It tends to whitewash. I mean, I'm going to say one thing about the 1619 Project. It's unbelievable to me that they basically, in a reiteration by the editor of the New York Times, they actually discovered the Dunsmore Proclamation of 1775.

But they ignored the fact, and so does Jaffa, that the condemnation of the Dunsmore Proclamation is in the Declaration. The Declaration's second-to-last indictment is the king had allowed his governor to free slaves.

I mean, and again, the 1619 Project is even more remarkable is that they ignored entirely the Philipsburg Proclamation of 1779, which may have freed, people are not certain, up to 100 ,000 slaves. The most important Emancipation Proclamation was the British.

Lincoln's did nothing because it was only basically to affect slave states that were in rebellion. The Philipsburg Proclamation should be the most famous document, and it's again, it's by General Clinton, and it was much broader and more successful than Dunsmore.

But how these folks can miss that the second-to-last indictment in the Declaration is of the fact that the British had freed slaves,.

Jefferson slaves.

It wasn't successful largely because of a kind of an unforeseen event called smallpox. The African population was even more subject to a smallpox infection than were the colonists. British were much less.

But smallpox, if it weren't for smallpox, I think the war might have come out differently. And the freed slaves would have, in fact, played a huge role in advancing their own cause and that of the British.

Harry Jaffa, Leo Strauss, and the Liberal Recasting of America

Now, you've mentioned Harry Jaffa a few times. People listening to this may not have no form of reference. They may not know who Harry Jaffa is. And Leo Strauss, you mentioned too. Why don't you just briefly give us just who's Leo Strauss, who's Harry Jaffa, and why should we care about what the story they're telling us about the founding?

My guess is it's not a we. Strauss was a German-Jewish émigré who taught in the United States at the University of Chicago. He may have taught at New School for a while and then ended up at the University of Dallas.

A brilliant political theorist who had a vision that the world and modernity had undermined much of what he viewed and valued. I don't think, and I don't know, but I don't think that Strauss had anything to do with the world and the vision of Jaffa.

Jaffa was one of his students, but it's like in every time there may be a difference between Christ and Christians, human-humans, Locke and Lockeans. There's a difference between whatever Strauss taught, and again, he's a very interesting, thoughtful, and rich author and worth considering.

Jaffa is not. Jaffa is a polemicist who, across his career, became ever more sort of infatuated with himself and his own thinking. His earlier works were relatively good, and the more he became an avatar and a sort of a guru.

And his guru is that the Declaration is the most important document. So he has a history of political theory. Along the line towards the end of it is Jefferson, Lincoln, Jaffa. And his acolytes, like Anton and others, they believe that, in fact, he's some kind of a divinely inspired figure and his vision of America, and this is what's so remarkable, is not conservative.

It's liberal. So we have a problem with American conservatives and one is the trouble of dealing with slavery. He solves that problem by basically not being conservative. He argues that almost everything he argues is antithetical.

He hates custom. He hates tradition. He hates the idea. He develops and defends abstract rights. What is conservative in this body of thought? Nothing. And how is it the conservatives have allowed this interloper?

And the problem is South and slavery. The true conservatives in America tend to aggregate around the South and are tarred by the anchor, the weight, the sin of slavery. He avoids that, but in so doing, transforms America along with Lincoln and refounds us as a liberal nation rather than a democratic nation.

The thing that's most remarkable is I actually asked him about the second to the last indictment. He didn't even know it existed. Where the declaration was supposedly is defending human equality, says one of the things, the reasons we should rebel against the king is that he had dared to free our Virginian slaves because he was the governor of Virginia.

And he had. Clinton did it for all the colonies four years later.

Mm-hmm.

Which was much more successful. On board the ships leaving New York when they left were plenty of Washingtons and Jefferson slaves.

Wow.

Who the British had freed.

Yeah.

And the Dunsmore actually required that, in fact, in order to gain their freedom, they had to enlist. Phil Spirk didn't. You never hear that. In fact, that's his last month of the Confederation. They actually have an emancipation proclamation.

Historians disagree about as to what its motives were. It was very short-lived. But, you know, people also forget that the person pushing for it was Benjamin Judah. All right, Benjamin.

Judah Benjamin.

Judah Benjamin was one of the, he wasn't alone. But, yeah, this is one of the things remarkable. How is it possible the South actually had an emancipation proclamation, which probably, I mean, again, the 14th Amendment really was effective, but Lincoln's emancipation proclamation wasn't.

It was a wartime document, just like Dunsmore. How do you defend America when it's, you know, it's not simple? So defending the Federalists, they're not our friends. These are people who are antithetical.

The Constitution can be defended because the Constitution is not anyone's, any particular group's vision. It was an amalgamation. It was a hybrid. It was a compromise. It actually is a federal document.

But the people we celebrate, like Hamilton and Madison, they were not Federalists. They're Nationalists. They find Federalism to be antithetical and something they wish they could undermine. Was there a vision of America that was consistent with not the people to, I mean, the Federalist vision doesn't come into fruition until the 20th century.

The aspiration basically to have a national government controlling everything with two aspirations. One, to control the world, Hamilton, and two, to basically protect individual rights at all levels of government, Madison's.

They wouldn't have the capacity. They wouldn't have the ability until, again, probably the 1920s when we overturned basically the Bill of Rights in a case which changed the nature of America. So the Federalists only comes into really force, 150 years later.

Were there people who argued for American localism, Federalism? Yeah, they're called. I mean, here's the irony. The people who we call Anti-Federalists were Federalists. The people we call Federalists were Nationalists.

And if you basically open any text where you have Federalists, I mean, my favorite is Melanchthon Smith versus Hamilton. Melanchthon Smith says, why can't we be a large Switzerland? And Hamilton, whose aspirations are to mean imperial power, says, no, we can be more.

So that's the real difference then. That's the dividing line between nationalism and Federalism.

Or there's an older vocabulary which was still alive then. It's called court versus country.

Court, okay.

These are two political visions. They more or less would morph into democratic and liberal, but the 18th century terms were court versus country. And the Madison, I mean, the people who fought the revolution and sought it were actually being driven by what's called country school thought, which is democratic, localist, which made virtue one of the central aspirations of a political life.

The court people are actually liberals. They do not believe in virtue, or at least not at anything that is at a political level. They believe in freeing markets. They believe in centralized government.

They believe in national government. But again, the Anglo-American world was divided between these two visions, court versus country. And the people who brought us the revolution were mostly guided by what this country school thought.

And the people who brought us the Constitution are mostly, in fact, court thinkers.

So where does the Declaration of Independence fit in, or does it?

It fits in actually quite well in its understanding of itself at the time as country. Lincoln would transform it into court.

So the Declaration of Independence is actually a conservative document as the country school of thought that you talk about. I'm translating that to conservative, I suppose.

You know, it's something when I teach this, it's hard for me because in some ways, the Declaration is more part of the previous 100 years than it is in itself, not in its miss or reinterpretation. It's more part of the country school and maybe the end of two millennium of both Christian and pagan thought.

And the work explaining the Constitution is classically liberal. It does not believe in virtue. It does not believe in democracy. It believes that human beings are irredeemably imperfect and that what you need to do is set up...

The Constitution, Federalism, and the Limits of Human Nature

So the older vision was, how do you develop virtue in people in order so they can, in fact, live together? They abandoned that. It's never gonna happen. What you do is you develop one group of passionate interest to oppose another group of passion.

It's in fact, it's through organizational means that we achieve good government, but it's not through making people good. Now, Madison and Hamilton were men and I'm not sure Jay was actually at the convention in any event, but they had a vision that they went into the convention and Madison lost almost every major argument at the convention.

The father, the Constitution, it's just, again, one of our stories. It's just not true. I mean, the actual author is in fact, Gouverneur Morris. Not that he's necessarily, but he's an author in the sense that he redacted it.

But Madison lost almost every major debate. Hamilton, both of them, if you read the end of Fran, their notes, they both comment on how this Constitution is not anything close to what they had aspired to and wanted, but it's better than the alternatives of the articles.

But they have a vision, though they're separable. One is about America being a great imperial power and the other one is about protecting individuals, but both have the same need to control individuals who are at the local and state level to make sure they end up willing to fight and pay taxes for wars and to stop them from intruding on the rights of mostly religious minorities, but others as rich as well.

I mean, there's this famous quote, which often is ignored or only half quoted by John Dickinson. And the quote is, I mean, again, he said, reason will mislead you. Don't follow it. Follow practice. He said, no nation in the world would have come up with something as absurd as jury trials if you'd only thought about it in abstract.

It had to be developed by accident. I mean, this is a core of a conservative thought. It's about human humility and its opposition to this propositional nation. It's about arrogance. It's that somehow or other, we come up with these concepts and we spin out of some abstract idea.

Conservatives is about human beings are really not all that smart and society is really complicated and if you ignore those two things, you're going to make only mistake after mistake. And America isn't,.

I mean,.

America is a nation of populist conservatives. It's elite conservatism comes and goes. It normally gets decapitated, usually in a war, war of independence, what people call the civil war, which I don't.

I mean, we had two wars of independence. One, France helped us win. One, France didn't help another side win. But American elite conservatism has a very checkered past. It just doesn't develop. But we have a live, well, and I think mostly admirable, far from perfect, popular conservatism, which we can continue to build on and try to figure out a way to make it work with the needs of a unified nation in the 21st century.