A lot turns on words. In Hebrew, today and millennia ago when the Bible was written, the word mostly used for slavery is ‘avdut. From that same root come words used to mean work, such as people do through their lives, and service, as in the Temple service or the service of prayer.
Marshall’s decision shows most clearly how sacrifice cleanses power and strengthens it.
The meanings are clearly related, yet clearly there is a range of value, going from divine service as an ultimate kind of good all the way down to involuntary servitude, which is an ultimate kind of evil.
There is a similar range of meaning to the concept of freedom. To those whose idea of freedom means destruction of norms, Edmund Burke replied:
Permit me then to continue our conversation, and to tell you what the freedom is that I love, and that to which I think all men entitled. This is the more necessary, because, of all the loose terms in the world, liberty is the most indefinite. It is not solitary, unconnected, individual, selfish liberty, as if every man was to regulate the whole of his conduct by his own will. The liberty I mean is social freedom. It is that state of things in which liberty is secured by the equality of restraint.
A nation that is self-governed requires self-governing people. By age three, we get that the play of life requires self-restraint, self- governance. If power is vested in the people, then, given that power can be used either for good or its opposite, a good self-governing nation will need to have people capable of choosing the good themselves. We cannot say that we are free to let the moral issue sort itself out and we are to concern ourselves only with power — unless we embrace the tyrant’s creed that might is right.
America’s founders, as a group, were resolved to make sure this country did not become a tyranny. The Framers of the Constitution, in particular, set up a political architecture based on the structural soundness of the triangle. They set up three coequal branches of government, whose inevitable struggles for power with each other would balance each other off and reliably leave the sovereignty of the people intact.
But, as John Adams cautioned, that blueprint only works if the sovereign people remain morally and religiously grounded. He did not mean a particular mode of formal piety, but of the core vision of the Exodus, in which the people had a vision of their future and of each other grounded in the depths of their being and of all being. Only such a grounding would enable even the best conceived structure to bring forth a good and free nation.
And the Founders gave us examples of that kind of moral and religious grounding at work in the early days of our republic.
Last week’s column mentioned the outstanding example of James Madison arguing in the First Congress for the plenary power of the executive branch. He was denying the power of the legislative branch, of which he was a member, to dismiss executive branch employees. But Madison was exercising this restraint in service to a larger vision of the Constitution. It was only in the success of the whole that he could have the government he helped found succeed. He willingly set limits on his own branch’s power in light of that vision.
A more famous example is George Washington’s precedent-setting refusal to run for a third term as president. The painter Benjamin West, appointed to serve King George III, quoted that monarch as saying of Washington’s refusing to take a third term as president: “If he does that, he will be the greatest man in the world.”
Washington’s overpowering sense of duty and responsibility did not allow him to consciously choose for unlimited power. In doing so, he set a ruling precedent that was broken only once in our history, and that break so bothered the American people that we amended the Constitution to make Washington’s precedent forever mandatory. As the power of our Executive is concentrated in the single person of the President, this act of self-limitation was of supreme importance.
The third branch, the Judiciary, got off to a slow start. It seemed of limited importance and did not assert its power against either of the other two branches until the Marshall Court, which began just a little before Jefferson took office as our third Chief Executive. The brilliant and determined Marshall established the Court’s power of constitutional review in the landmark Marbury v. Madison decision.
How he established that power was by relinquishing power. In Marbury, a Federalist appointee to a minor job was not allowed to hold office by the new Jefferson Democrats. The Federalists had lost control of the legislative and executive branches in the election of 1800. The triumphant Democrats were giddy with their new power and they marched in the streets threatening trouble if the Federalist court dared to rule favorably on Marbury’s mandamus petition.
Chief Justice Marshall’s decision, as he read it out loud, demonstrated decisively that Marbury was in the right by the statute, and there was high tension in the room as it seemed that violence would ensue empowering Jefferson to destroy the Court.
But after establishing Marbury’s claim, Marshall ruled that the law on which the claim was based was unconstitutional, the first time SCOTUS had asserted such a power. The country gave a sigh of relief; his decision was met with bipartisan approval. Marshall willingly gave up a triumph for his party and for the law on the books in order to establish a greater power for future courts — the Supreme Court would have the power to declare acts of the other two branches unconstitutional and therefore void.
Marshall’s decision shows most clearly how sacrifice cleanses power and strengthens it. None of these American exemplars was embracing powerlessness and a retreat from governance. Rather, they grasped that for our power to be a force for good, it had to be governed by something higher than itself — the larger good, the deeper self of shared sovereignty of the people that is the foundation of our Constitutional structure.
Two thousand years ago, a great judge of Jewish law expressed the idea at work in this balancing act in a concise proverb. Hillel said, “If I am not for myself, who am I? But if I am for myself only, then what am I?”
Those questions define the tension under which self-governing people — and nations — work. America first learned to stand for itself in the long fight for independence. Then it had to define what we stood for and define our national life through moral choice.
Hillel’s proverb had a final piece to it: “And if not now, when?” The need to live independently and to govern ourselves well is not an abstraction but something that requires immediate implementation in our personal and national lives.
Hillel’s teaching was not just for experts. We have for far too long let others govern for us, not wanting to be bothered, hoping the corrupt use of power would naturally right itself. The great gift of Trump’s campaign is to impress on all Americans, both his friends and his foes, that we cannot sit back. From all sides, he brings people to realize — if not now when? We must no longer delay engagement in the governance of our country in a way that will keep it free. Every one of us is called to walk that line of ordered freedom, of strong power devoted to the good.
That is American greatness.
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