Beyond Wishful Thinking: A Response to Schlueter

 
 

“Natural law liberalism” is a chimera that cannot and does not exist in the American tradition.

I remain grateful for the ongoing discussion generated by my article, “Unsustainable Liberalism.” To me, this robust dialogue suggests more than just an academic interest in political philosophy; I sense a preoccupation with the dire and self-destructive course that our liberal democracy seems to be taking. To diagnose the elusive illnesses that plague us is no easy task, but it is one that seems urgent (and thus far richly rewarding), owing to the wide-ranging interest in my exchange with my colleague Phillip Muñoz.

In this debate, my friend Nathan Schlueter recently has raised another intriguing possibility: The American founding should be understood as a continuation of the pre-modern tradition of natural law. Schlueter’s argument echoes, if it does not exactly replicate, a longstanding claim with a particularly Catholic pedigree in the American tradition, one that began with Orestes Brownson, was further developed by John Courtney Murray, and is today advanced by Catholic scholars such as Peter Augustine Lawler. As nicely characterized by Lawler, this tradition can be encapsulated as the “built better than they knew” approach to understanding the American tradition. The claim is that even as the American founders explicitly based the founding on the philosophical tradition of social-contract liberalism, they were instinctive heirs, and even unconscious proponents, of an older natural law tradition.

Schlueter pushes this argument in a somewhat unusual direction: he claims that the founders were altogether cognizant of a tradition about which he admits they had little explicit to say. Following Christopher Wolfe, he calls this “natural law liberalism,” and argues that this is our true inheritance. He contends that “it does not matter that none of the American founders ever articulated the principles of natural law liberalism in a systematic way…. As John Cardinal Newman said of the Apostles, the American founders did not build better than they knew, they knew more than they said.”

Now, claims about whether or not the founders knew about and used the natural law tradition are hard to refute, since they are philosophical versions of the dog that didn’t quite bark, but both Brownson and Schlueter’s claims have every sign of being a form of wishful thinking masked as political philosophy. I wish, in fact, that their claims were true—because it would make it easy for conservatives of a certain type to rest easy that there are ample resources in the American tradition for correcting our current course. The reason why my claims about the self-undermining nature of the liberal founding so disquiet many of my conservative friends, I believe, is that they raise anxiety that our tradition may have fewer native resources than we might believe or want for the restoration of the virtuous republic that we all desire.

I think this disquiet comes not simply from any anxieties induced by my argument alone, but also from the sheer implausibility of the counter-claim. By Schlueter’s telling, the founding is the culmination of a several-thousand-year-old tradition dating back to Aristotle and Cicero, but one that was suddenly and decisively unsettled around the year 1900 (or perhaps 1960) and which, over a relatively short period, has completely routed the natural law basis of the founding and left us with a corrupted political order, a dysfunctional economic system, a degraded and degrading culture, and an exhausted civilization. Forgive my skepticism.

Schlueter’s argument invites an almost immediate dismissal, since the founders said many things that directly contradicted classical natural law. (The Brownson/Murray/Lawler argument is harder to answer, since it asks us to believe that America has had a natural law tradition entirely unbeknownst to itself. I have some initial reflections about this argument elsewhere, but arguing this case is rather like shadow-boxing). I should note, though, that Schlueter broadly assumes the monolithic nature of natural law (even while cautioning us from making such unnuanced claims about liberalism), and it would require a treatise to make the necessary distinctions between the extensive varieties and versions of natural law theory.

Still, for the sake of brevity and at significant risk of reductionism, let me broadly compare the basic claims of natural law, on the one hand, with those of liberalism, on the other, and suggest that according to the law of non-contradiction the two cannot co-exist as “natural law liberalism.” I will then very briefly argue that the founders’ explicit statements, not their inchoate non-statements, clearly reflect liberalism’s assumptions. Last I’ll address the “money question”: Can America be saved by an appeal to a tradition that was not robustly present at the creation?

Natural law in its Aristotelian-Thomistic form begins with a claim that man is by nature a political animal, that humans flourish under law that is according to nature. It argues for the existence of an ordered world with discernible laws governing human behavior that, when observed, lead to human flourishing, or the fulfillment of the human telos. It posits the existence of the good, and thus, a standard by which laws are crafted and a society is ordered. The “common good”—a phrase endemic in natural law thinking—is not simply an aggregate of preferences, but rather an objective condition in which the political and social spheres are ordered in accordance to the good. Individual (negative) liberty is not its main aim; instead, one is a truly free human insofar as the larger aim of the proper ordering of public and private spheres according to the good is achieved.

Liberalism holds that men are by nature free and that politics is a man-made institution that limits our natural freedom. Human society arises through a contract among autonomous individuals in which its members retain certain rights. Government exists (to quote the Declaration) to secure those rights. Thus, there is no objective “good,” there is only “right,” and the proper arrangement of institutions and practices that secures rights and corresponding individual liberties.

Law in this view is wholly positive, not a reflection of, or needing to be in conformity with, any external standard. As political society is not natural, but rather a utilitarian arrangement, there is no possibility of a common good, only the accumulation of individual preferences of members of the polity, the securing of which results in the advantage of all individuals—much as a growth economy, without assuming the existence of an objective common good, is assumed to benefit all of its members. In general, in liberal society, anything that increases the ability of individuals to achieve their individually defined ends is regarded as a desirable societal goal. Thus, there is a strong emphasis on increasing national and economic power, a basic desideratum of the founders.

Under liberalism, liberty is widely regarded as the freedom to pursue one’s individual desires—short of compromising other people’s rights—though liberals disagree about whether and to what extent government should or must be a partner in assisting in that pursuit. In an extreme variant (much in evidence today), the government’s role needs to be extensive in making possible the varied pursuits of individuals. While this argument appears cloaked in the language of collectivism, its aim is government-sponsored-and-supported pursuit of individual appetite.

Schlueter’s natural law liberalism, then, is a chimera, a combination of parts of fundamentally different creatures that does not and cannot exist in reality. The two are, in fact, contradictory and mutually exclusive. One wishes their union was an option, but wishful thinking is not a substitute for political philosophy.

There simply can be no gainsaying that the founders were fundamentally liberal. We need only look at their words, most obviously the Lockean basis of the Declaration (here I disagree with Schlueter that we can simply “step away from the Declaration’s Lockean elements”), but so too to the justifications they offered for the Constitution. In the course of Federalist 10, Madison makes the matter plain: “the [protection of the] diversity in the faculties of men, from which the rights of property originate … is the first object of government.” Government exists, that is, to protect our rights, to ensure the flourishing of our “diverse faculties,” including and especially the right of property (directly echoing Locke’s argument in Chapter 5 in the Second Treatise). The pursuit of appetites, in the form of accumulation of property, is understood to be the main activity of individuals, requiring the protection of the government—indeed, forming the “first object” of government.

By contrast—to appeal to one example, by way of contrast—in the Aristotelian-Thomistic natural law tradition, there is a natural limit to, and appropriate use of, all forms of individual accumulation, including property and wealth. That is, the natural law sets limits on human acquisitiveness; thus government should prioritize laws that limit acquisitiveness. Law should also support the cultivation of virtue, including the virtue of moderation.

I agree entirely with Schlueter that the founders themselves likely would not have favored the libertine behaviors increasingly supported by law and encouraged by social norms in today’s society, but it is not my argument that they did. Rather, I argue that the trajectory of their liberal logic, making protection of sovereign choice and individual appetite the main object of government, leads with nearly inexorable certainty to an outcome such as that we now witness today. The invocation of the founders and the frequent calls to return to our Constitution as the proper and desirable alternative to today’s liberalism is not only no real alternative at all, but it is a form of lazy thinking that forestalls the much harder and more challenging work that our current moment demands from thinkers of all disciplines, and in particular, from political philosophers.

Leo Strauss, to cite one of Schlueter’s authorities, recognized this challenge—he regarded the American founding as a direct inspiration of the “first wave” of modernity, that is, the wave inaugurated by Machiavelli, Hobbes, and Locke. The fact that it was closer in temporal proximity to a pre-modern tradition, as Strauss recognized, does not permit us to conclude it was simply a continuation of that tradition, as Schlueter wants to argue. Each of the authorities cited by Schlueter—including and especially the two most recent popes—have been careful and quite explicit in their rejection of liberalism’s basic anthropological premises.

If I am correct, then we are truly in a troubling pass. Can there be hope for a nation without an “alternative tradition” to liberalism?

I concur, in the first instance, with Tocqueville’s observation (quoted in my previous response to Muñoz) that Americans have, for a long time, acted better than their official (liberal) philosophy. This is not the consequence of conformity to our philosophical tradition, but rather the inheritance of a set of practices and traditions that pre-date liberalism. It is not a reflection of a native natural law tradition, but a vestige of a civilized, Christian, pre-modern European past. That set of practices has been relentlessly undermined, diluted, and even attacked by a growing adherence to our official philosophy. We have become more Lockean over time, ironically becoming more like the creatures that were described as existing only in the state of nature, now with the support of a massive and growing state apparatus—which is the only way that radical individual autonomy can come into existence.

However, the story is not simply that of a waning relationship to an ancient inheritance. We must also account for the successive waves of immigrants from nations with a strong natural law and Catholic tradition, particularly during the nineteenth century. Ironically, the arrival especially of Catholic immigrants accelerated the Protestant embrace of Progressivism and a more radical form of statist liberalism. The middle part of the twentieth century was, in many ways, the story of the assimilation of those Catholic populations into the American narrative, the Lockeanization of American Catholics (my institution, the University of Notre Dame, was a signal contributor toward this effort, an effort still on display at the beginning of each home football game when the Lockean Declaration and the Preamble to the Constitution are read to the tune of “America the Beautiful”).

At the advent of the twenty-first century, however, a growing number of intellectually well-equipped Catholics and fellow travelers of different denominations and traditions have begun to question and move away from the incoherent late-twentieth-century counter-effort to Catholicize Lockeanism and are exploring possibilities—political, theological, philosophical, and prudential—that reject the false anthropology of liberalism and urge a revival, in some modern form, of natural law. This will doubtless require creative and thoughtful reflections and arguments, and even testing how fertile constitutional soil may be to a foreign transplant. It proved to be all too fertile for the German transplant that blossomed into Progressivism, and for good reason, as it was already a fundamentally liberal loam. Whether it will accept a more challenging but better seed remains to be seen and explored.

However, I do not think that a restoration will occur from the top down, in the form of getting our theory, jurisprudence, and elections right. I think, rather, that our best and only hope lies in once again being better than our philosophy, in part by simply ignoring our official philosophy and those increasingly degraded practices that it fosters. As with members of the original Church living among the pagans, by living a better way and being a witness to the Truth, many will come to admire and seek to emulate this better way. Our politics and laws will improve when our practices, and ultimately our culture are healed, not vice versa.

Schlueter accuses me of overlooking natural law, but of course—in my original article—I argued that the limits imposed by nature (and, by extension, natural law) were the first target of liberalism, and the restoration of those limits is not only necessary, but ultimately unavoidable. The first step lies in learning to live within nature’s limits and the limits of the natural law. We cannot continue to live in complete disavowal of the natural law. We may deny its existence, but it rules whether we pay it obeisance or not, and for the duration of our rebellion, the consequences accumulate. Ignorantia juris non excusat.

Patrick Deneen is the David A. Potenziani Memorial Associate Professor of Constitutional Studies in the department of political science at the University of Notre Dame.

 

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