Knowledge And Decisions

While freedom antedates constitutional democracy, both are rooted in a division of power. A constitution intentionally creates institutionally what has occurred fortuitously or systemically at various times in history — such a division of the decision-making power as to preclude one faction’s complete domination and to necessitate their courting of popularity. “Despotism itself is forced to truck and huckster,” under such circumstances, and even an absolute monarch “governs with a loose rein that he may govern at all...”³⁷ Freedom as a result of division prevailed among the Arabs before Mohammed united them,³⁸ and religious freedom existed among the diverse peoples of the Roman Empire before Christianity united them by conversion or through force. Much of the freedom of colonial America and the early United States was a fortuitous freedom, born of the sheer diversity of local despotisms, too numerous and widespread to unite or overcome one another. A leading American historian has observed: “In none of the colonies was there anything that would today be recognized as ‘freedom of the press.”’³⁹ Religious freedom was equally scarce. In 1637 the Massachusetts Bay Colony “passed an ordinance prohibiting anyone from settling within the colony without first having his orthodoxy approved by the magistrates.”⁴⁰ A Puritan leader declared that other religionists “shall have free Liberty to keep away from us.”⁴¹ The banishment of Roger Williams,⁴² and the public whippings and brutal imprisonment of the Quakers who came to Massachusetts⁴³ indicate that this was no idle statement. Nor was Massachusetts unique, or Quakerism the only proscribed religion. In late colonial America, “the only place where the public exercise of Catholic rites was permitted was Pennsylvania, and this was over the protest of the last governor.”⁴⁴ It was from this “decentralized authoritarianism” that a “great diversity of opinion” came, not from toleration in principle but from “the existence of many communities within the society each with its own rigid canons of orthodoxy.”⁴⁵

Systemically evolved freedom in colonial American later became intentionally preserved freedom, in the Constitution of the United States. The Constitution relied on institutionalized divisions of power to preserve the freedom created by fortuitous divisions of power. It was the social equivalent of a chance mutation being preserved because it proved valuable. In addition to the classic division of powers into legislative, executive, and judicial, the Constitution divided powers into federal and state — with the state power being the predominant power in most areas, superseded by federal power primarily in interstate or international matters. This created as many independent power centers as there were states. States’ rights, like some other rights, exist not so much to benefit the actual holders of these rights, but to serve larger social purposes.

The dominant theme of the Constitution itself and of the writings of those who created it was the danger of power concentrated in a single decision-making unit or in a few decision making units operating in concert. What Madison called a system of “opposite and rival interests”⁴⁶ was built into the American government. Each branch of government was given “the necessary constitutional means and personal motives to resist encroachments of the others.”⁴⁷ Freedom was not trusted to the morality of leaders but to their conflicting drives: “Ambition must be made to counter ambition.”⁴⁸ Government was not to create divisiveness but to utilize the inherent conflicts “sown in the nature of man” as a means of preserving freedom.⁴⁹ Perhaps the point is most easily illustrated in reverse: the one area in which a united national majority was easily identified in colonial America was race, and it was here that the loss of freedom was carried to its extreme in slavery. Although it is known when Africans were first brought to America (in 1619), it is not known when slavery began, because the first captured Africans became indentured servants, like an even larger number of contemporary whites.⁵⁰ But slavery evolved as systemically for blacks as freedom for whites, and in both cases the legal system later ratified what was already an accomplished fact. In short, the connection between freedom and the presence of offsetting powers is shown both by the presence and the absence of freedom in colonial America.