Paradigm Shift: Comparing the Founding Framework for Republican Governance to the Modern Rights Revolution

References to individual “rights” have proliferated in the twenty-first century. Seldom can you engage in a political discussion today without there being some mention of an entitlement like unemployment benefits or student loan forgiveness. The criterion for judging whether the federal government is “doing its job” has become whether or not it has produced positive entitlements for the people. COVID-19 all but solidified this criterion into the American psyche as the federal government responded to the pandemic by introducing stimulus checks and sick leave policies.^[1] The purpose of this paper is to compare the positive rights criterion of assessing the government with the criterion the Founders used to evaluate the American republic. I argue that the modern criterion of evaluating the government’s success is incompatible with the Founders’ criteria for successful republican governance.To accomplish this objective, I analyze the Founders’ thoughts on republican government and their emphasis on virtue as necessary for a successful republic. Next, I analyze the modern positive rights revolution and the entitlements sought by its adherents. Lastly, I show how judging the government based on its ability to provide positive entitlements undermines virtue. In Federalist 39, Madison outlines the Founders’ determination in constructing a republican government. He believes there is no better option; no other form of government is “reconcileable with the genius of the people of America” (Madison 2002, 249). If the Constitutional Convention were to have diverged from the republican mission, Madison thought it fit to “abandon [the convention] as [it would be] no longer defensible” (Madison 2002, 249). He defines a republic as a form of government who derives its power directly or indirectly from the constituency. He clarifies that a republic must find its power from the whole of the body of citizens, not merely a faction or a class of the whole population, lest the polity be vulnerable to tyrannical nobles (Madison 2002). Not only must a republic be empowered by the whole body of citizens, those citizens must be virtuous.

In the Virginia Bill of Rights, Founder George Mason stipulates in the fifteenth article that no free government can thrive unless it adheres to justice, moderation, temperance, frugality, and virtue (2002, 158). Mason also argues in the document that the blessings of liberty require republican rulers to uphold the aforementioned virtues. Historian Gordon Wood argues that the republican structure of government is fragile because it requires high moral character from the people (Agresto 1977; Wood 1998). While he concedes that all political structures require some level of virtue in its citizens, a republic needs a greater level of virtue from its citizens for its governance solely depends on the citizenry.

All virtues, from generosity to integrity, are related in that they are desirable and morally upright characteristics. In the context of republicanism, however, some virtues are more important than others. In The Political Theory of the American Founding, Thomas West examines what the state constitutions of Vermont, New Hampshire, Massachusetts, Pennsylvania, and Virginia held about virtue. He chooses these five states to examine as their constitutional provisions were indicative of the consensus among the founding era American political thinkers (2017, 272). Among the five states, the virtues of justice, moderation, temperance, frugality, and industry were repeatedly mentioned as necessary virtues for a government’s success (West 2017). The latter two virtues, West contends, are not only social virtues but also distinctly republican virtues. He defines “industry” as the habit of appropriately hard work, which sums up the concept of work ethic (West 2017, 274). Only when the majority of the populace has a strong work ethic can a republican system survive. He contrasts this virtue with the vice of laziness, which is attributed to aristocratic circles where leisure and luxury are exalted. Pulling from Jane Austen’s novel Pride and Prejudice, West illustrates how the renowned story warns readers of the non-industrious aristocrats who would rather live in leisure than work hard for their property (West 2017).

The second republican virtue West elaborates is frugality. He defines this virtue as a “habit of managing and spending one’s earnings carefully . . . to provide for oneself and one’s family” (West 2017, 274). The aristocratic culture of excess directly undermines the prudence and self-control needed to be frugal. Yet, republicanism requires the exact opposite of an aristocracy; republics need citizens who are frugal and prudent in how they manage their resources. For if a citizen is irresponsible in managing his own property, how will he effectively and wisely manage his constituents’ concerns if elected to public office? Before managing the resources of countless constituents, citizens must exercise the habits of industry and frugality in their personal affairs.

West defines both republican virtues as “habits,” which hearken back to the Aristotelian idea that moral virtue is connected with the good habits man cultivates. In his Nicomachean Ethics, Aristotle contends that representatives play a crucial role in forming the habits that lead to virtue, for “legislators make the citizens good by forming habits in them” (Aristotle 1999, 21). Aquinas similarly contends in his Summa Theologicae that wise lawmakers encourage virtuous behavior of their constituents by passing laws that gradually cultivate morally upright habits in the people (Aquinas 2011, 480). Aristotle also states that we can separate a good government from a bad one based on whether its officials are establishing laws that promote morally good habits (Aristotle 1999, 21). The founders adopted this Aristotelian criterion of judging the quality of government based on its ability to pass laws that cultivate social and republican virtues in the people. John Adams contends in his Thoughts on Government that “the happiness of society is the end of government” (Adams 2002, 196). He later clarifies that happiness consists of virtuous behavior. The Founders sought not only to have virtuous leaders in public office but also to foster virtue in the citizenry.

In the twenty-first century, however, Americans have veered away from this Founding-era criterion of evaluating the government. They have instead turned to the modern standard of judging the government on its ability to produce positive rights for its citizens. Manuel Velasquez defines “positive rights” as moral claims that afford the beneficiary “the positive assistance of others in fulfilling basic constituents of human well-being like health and education” (Velasquez et al. 2018). The language of rights, while introduced by Locke in the seventeenth century, has become increasingly popular in part due to the UN’s Declaration on Human Rights in 1948. The document, unanimously affirmed by the UN member countries, stipulates several positive rights that the governments and private companies must honor (United Nations 1948). The right to public services, social security, employment, leisure and rest, as well as paid holidays, mark just several entitlements enshrined in the declaration.

While enforcement of the document’s articles is impractical, the UN’s declaration reshaped what republican citizens think of when pondering what a “good” government looks like. The Founders believed that a healthy government is one whose power is being checked through the structures of federalism and the separation of powers. The triumph of the “rights” language, however, has led Americans to overlook the value of these procedural restraints. Since human rights dominate the political landscape, there is no room for constitutional mechanisms to be a criterion in judging the government. Citizens now see these mechanisms for checking power as pesky impediments to the fulfillment of the positive rights they currently demand. Hamilton foreshadowed this issue when writing Federalist 84. Responding to the Anti-Federalists’ demand for a Bill of Rights, Hamilton warns that invoking the language of rights may lead to an endless trail of demands (Hamilton 2002, 302). He argues that any bill of rights cannot be exhaustive. For that reason, one can always make an argument that a specific entitlement, disguised as a “right,” was improperly excluded from the original document.

Hamilton’s fear is illustrated in one of the most famous Supreme Court cases. In 1973, when the Supreme Court decided Roe v. Wade, the majority opined that there is a constitutional right for women to have an abortion (1973). While they conceded that the Constitution never conferred a right to abortion, they deduced that under the Fourteenth Amendment’s Due Process Clause, there is an unwritten constitutional right to privacy. From that right to privacy, the majority remarked that the right encompasses the ability to have an abortion.

Using the rights language, the Court was able to make two deductive leaps to introduce a “constitutional” right into the political mainstream. No longer is the Constitution’s structure and its regulation of federal influence the primary standard in evaluating the health of the government. If it denies an entitlement demanded by the people, the government will be met with impassioned criticism. Further, the federal government may not even deny the entitlement but simply seeks to let the individual states handle the issue. This was the case with the Supreme Court when deciding Dobbs v. Jackson Women’s Health Organization in 2022. The majority did not absolutely prohibit abortion; they merely allowed the individual states to decide their policy on the hot-button issue (Dobbs v. Jackson Women’s Health Organization 2022). Abortion advocates simply did not care about this nuance and example of federalism. They believed that since the government was not willing to categorically defend their prized entitlement, they were justified in passionately railing against the government.

Using positive rights as a standard to judge the government is incompatible with the Founders’ standard of judging government by its ability to cultivate virtue in its citizens. The modern standard of judgment introduces positive entitlements not intended by the Founders to be protected in the Constitution. More importantly, those entitlements do not foster virtue in citizens. To the contrary, positive entitlements undermine virtuous thinking and behavior.

As an example, student loan forgiveness is trending positive entitlement being demanded by young adults. A 2022 survey found that close to 70% of respondents with student loans approved of the federal government instituting a student loan forgiveness plan (Marquez 2022). Fulfilling such a plan, however, impedes students from exercising frugality and industry. If the government absolves students from having to carefully manage their finances, it helps students avoid learning frugality in finances. Further, student loan forgiveness disincentivizes students from cultivating industry and working hard to finance their education as they know that the federal government will come to their aid and foot the bill.

The mindset being inculcated in students by student loan forgiveness is that they do not have to take full responsibility for their financial decisions. This mindset would reap disastrous results when these students assume public office. When they have to deal with governmental debt as lawmakers, there is no positive entitlement to fall back on. Politicians have to face financial issues head-on. When they fail to do so, it merely punts the issue back for their successor to deal with. Not only does student loan forgiveness discourage responsibility, it hinders citizens from forming a strong work ethic and a prudent mindset in financial dealings.

The modern rights revolution stands in direct conflict with the social virtues required of republican citizens. As this governmental structure derives all its power in the people, it is incumbent that citizens exhibit frugality, industry, and responsibility in their character. When one petitions the government to grant him an entitlement, he inherently abdicates responsibility in fulfilling that desire by himself. Even worse, he may be asking for an entitlement that undermines virtuous behavior. The “right” to paid holidays as elaborated by the UN is a relevant example. If compensation for resting and not working is normalized, citizens will start to think that they must be rewarded on the grounds that they desire it, not that they have something to deserve it.

For a republic to succeed, citizens must have the right lens in evaluating whether the government is carrying out its responsibilities well. The Founders, inspired by Aristotle and Aquinas, created a compelling standard for judging the government: has it introduced laws that promote virtuous behavior? For America to thrive, it is imperative that we not only adopt this standard of judging the government but also cultivate virtuous behavior as republican citizens.

References

2002. “Virginia Bill of Rights.” In The American Republic: Primary Sources, ed. Frohnen, 157-158. Indianapolis, IN: Liberty Fund.

Adams, John. 2002. “Thoughts on Government.” In The American Republic: Primary Sources, ed. Frohnen, 196-199. Indianapolis, IN: Liberty Fund.

Agresto, John T. 1977. “Liberty, Virtue, and Republicanism: 1776–1787.” The Review of Politics 39 (4): 473-504.

Aquinas, Thomas. 2011. “Summa Theologica.” In Classics of Moral and Political Theory, ed. Michael L. Morgan, 463-481. Indianapolis, IN: Hackett Publishing Company, Inc.

Aristotle. 1999. Nichomachean Ethics. trans. by W.D. Ross. Kitcherner, ON: Batoche Books.

Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022).

Hamilton, Alexander. 2002. “Federalist No. 84.” In The American Republic: Primary Sources, ed. Frohnen, 300-304. Indianapolis, IN: Liberty Fund.

Madison, James. 2002. “Federalist No. 39.” In The American Republic: Primary Sources, ed. Frohnen, 249-252. Indianapolis, IN: Liberty Fund.

Marquez, Alexandra. 2022. “Voters Split on Student Loan Forgiveness, New Poll Shows.” NBC News, September 20. https://www.nbcnews.com/meet-the-press/meetthepressblog/voters-split-student-loan-forgiveness-new-poll-shows-rcna48490.

Roe v. Wade, 93 S. Ct. 705 (1973).

United Nations. 1948. “Universal Declaration of Human Rights.” https://www.un.org/en/about-us/universal-declaration-of-human-rights.

US Department of Labor, Wage and Hour Division. 2020. “Families First Coronavirus Response Act: Employee Paid Leave Rights | U.S. Department of Labor.” https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave#:~:text=Two%20weeks%20(up%20to%2080. Accessed February 23, 2023.

Velasquez, Manuel, Claire Andre, Thomas Shanks, S.J., and Michael J. Meyer. 2018. “Rights.” https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/rights/.

West, Thomas G. 2017. The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom. Cambridge: Cambridge University Press.

Wood, Gordon S. 1998. The Creation of the American Republic, 1776-1787. Chapel Hill, NC: The University of North Carolina Press.                     

^[1]  The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. While this FFCRA provision expired on December 31, 2020, it more importantly legitimized the notion that there is a positive “right” to paid sick leave that the government must enforce (US Department of Labor 2020).