Natural Law Liberalism Beyond Romanticism

 
 

To reject the presence of natural law in documents of the Founding era is to embrace both cynicism and romanticism.

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Arguments on the nature of liberalism and America seem to go in cycles, and this recurrence suggests something of the seriousness and complexity of the issues involved. In the 1980s it was George Weigel versus David Schindler. In the 1990s it was Harry Jaffa versus Harvey Mansfield. In the 2000s Robert Kraynak redirected the dispute with his Christian Faith and Modern Democracy. And in our own decade Patrick Deneen has revived the argument with eloquence and energy.

In his most recent Public Discourse piece, Deneen accuses me of “wishful thinking” for arguing that the natural law is a constituent part of America’s founding principles. Without citing any evidence, he claims that “the founders said many things that directly contradicted the natural law.” And he writes that “claims about whether or not the founders knew and used the natural law tradition are hard to refute, since they are philosophical versions of the dog that didn’t quite bark.” Against this, he asserts that “the founder’s explicit statements, not their inchoate non-statements, clearly reflect [modern] liberalism’s assumptions.”

These are remarkable claims, for the truth is exactly the opposite. Is Deneen seriously questioning the prominent role that natural law played in the founding era? I quoted the “explicit” appeal to natural law in the Declaration of Independence. I might also have quoted a vast number of sermons, speeches, and writings of the founding era. Consider, for example, the Massachusetts Constitution of 1780, the world’s first and oldest written constitution, and the pattern for the other constitutions of the revolutionary period.

The constitution begins with a Preamble and a “Bill of Rights” that use language similar to that found in the Declaration of Independence and Locke’s Second Treatise: “The end . . . of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquility, their natural rights and the blessings of life.” Read in isolation from the rest of the text, these provisions seem to lend some credibility to Deneen’s argument.

In the next paragraph, however, we read that “The body politic . . . shall be governed by certain laws for the common good.” As Deneen rightly points out, the “common good” is a “phrase endemic to natural law thinking.” What, then, does he make of the fact that the phrase “common good” shows up repeatedly in founding documents?

Presumably Deneen would reply that by “common good” the founders really meant “an aggregate of preferences.” But that’s not what the Founders thought. Here’s what the framers of the Massachusetts constitution said:

[The] happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality. (Art. III)

Government is instituted for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interest of any one man, family, or class of men. (Art. VII)

A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty and to maintain a free government. (Art. XVIII)

Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them. (Chapter V, Section 2)

These kinds of provisions pervade the writings, sermons, speeches, laws, and political documents of the founding era. They find prominent expression at the national level in the Northwest Ordinance of 1789 (“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged”), George Washington’s First Inaugural Address (“the foundation of our national policy will be laid in the pure and immutable principles of private morality”), and judicial opinions (see for example Justice Samuel Chase in Calder v. Bull: “there are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power, as to authorize manifest injustice by positive law”).

It was for good reason, therefore, that Leo Strauss, contra Deneen, did not simply identify America with the first wave of modernity that began with Machiavelli, but instead writes in his book on Machiavelli that “The United States of America may be said to be the only country in the world which was founded in explicit opposition to Machiavellian principles.”

It is true that the founders understood politics in “instrumentalist” rather than “solidarist” terms. Participation in politics is not the highest end of human flourishing, as Aristotle suggested, but only a means to the higher forms of flourishing achieved within civil society. The deepest cause for this lowering of political ends is not Lockean liberalism, however,  but Christianity, and nothing in this reordering of ends requires that civil society be conceived as a mere “aggregate” or that government be neutral among competing conceptions of the good. The right and the duty of the state governments to provide for public morality, in addition to public health, safety, and welfare (the so-called “police power”) has, until very recently, been one of the fixtures of our constitutional order.

In contrast to the abundant explicit evidence of the natural law tradition in the American founding, there is not even “inchoate” evidence for the beliefs Deneen attributes to the founders, such as that human beings are “autonomous individuals,” that “there is no objective ‘good,’ there is only ‘right,’” and that “there is no possibility of a common good, only the accumulation of individual preferences of members of the polity.” The closest Deneen can come to evidence for this conclusion is a selective quotation of Federalist 10, and a disregard of the rest of The Federalist Papers, such as Federalist 57: “The aim of every political constitution is, or ought to be, first, to obtain for rulers men who possess the most wisdom to discern, and most virtue to pursue, the common good of society.”

In light of these facts, I cannot embrace Deneen’s claim that America’s current crisis is an organic outgrowth of its founding principles. In fact, the modern liberalism that Deneen describes does not make its way into the American legal system until well into the twentieth century, and this by way of judicial fiat, using the language not of John Locke or America’s founding documents but of John Stuart Mill and Immanuel Kant, and often in the face of better counter-arguments and evidence, and strong popular opposition and resistance.

So it strikes me as both erroneous and irresponsible to abandon the principles of the American founding for some vague ideal of a pre-modern, communitarian political order that has never existed except in the imagination.

Deneen accuses me of wishful thinking; I wonder, however, if he is not animated by an opposite impulse of cynicism—or romanticism, for the two always go together: Romantic ideals are always generated by a profound dissatisfaction with the existential order. When that existential order proves refractory to the ideal, as indeed it must, the result is a cynicism as low as the ideal was high. If Brownson/Murray/Lawler’s American Founders “built better than they knew,” Deneen’s Founders “built worse than they knew.” Against both of these, I repeat: The American founders knew more than they said.

I suspect this dialogue has caused not a few historians and philosophers to pull out their hair, and for similar reasons. Politics and history do not operate by the laws of deductive reasoning, but by a complex and dynamic process of event and inquiry, in which both implicit and explicit knowledge play an important role. The history of the word “liberalism” is a case in point. According to the Oxford English Dictionary the word “liberalism” does not even appear until 1816, and does not take on its more common meaning until 1859 with the publication of John Stuart Mill’s book On Liberty. How, then, could the founders of America have been devotees of liberalism, which did not exist until long after they were gone?

The answer, of course, is that the term “liberalism” emerges within a tradition of inquiry whose content exists prior to its conceptualization. And it should be clear, therefore, that there is no way to resolve our disagreement over the correct definition of liberalism by pointing to it. Deneen may, if he wishes, define “liberalism” in a monolithic way, as the ideology of autonomous individualism, but then he must conclude from the evidence that liberalism so defined had nothing to do with the American founding. But I see nothing to be gained by this, and much to be lost.

A similar point can be made about natural law. Deneen states that I “broadly assume the monolithic nature of natural law,” when in fact there are “extensive varieties and versions of natural law theory.” Despite the fact that he fails to apply this same criticism to himself, it is good to see Deneen appealing to the natural law at the conclusion of his piece. My reply to the objection is simple: I do not make the “assumption” that Deneen attributes to me, and the fact that he thinks I do reflects the same confusion as his treatment of liberalism: It fails to see how natural law is part of a tradition of inquiry.

By natural law I do not mean to include any particular “version” of natural law theory, but what C.S. Lewis in The Abolition of Man called “the Tao.” For Lewis, the Tao is not in the first place a set of substantive prescriptions; it is rather a basic orientation of practical reason toward the discovery and achievement of basic goods (what Lewis calls “objective values”). The substantive elements of the Tao are discovered through tradition and argument, and our understanding of them is subject to development. Natural law exists, then, as a living tradition of inquiry that constantly must be argued for, defended, renewed, and developed.

And so natural law liberalism seems to me to be the most accurate and promising term for capturing the principles of the American founding, principles that at the same time affirm natural rights and the natural law, limited government and the common good, freedom and virtue, the dignity of civil society and the dignity of political life. This is the kind of liberalism John Paul II affirmed in the American founding when he said the following:

From the dawn of the Republic, America’s quest for freedom has been guided by the conviction that the principles governing political and social life are intimately linked to a moral order based on the dominion of God the Creator. The framers of this nation’s founding documents drew upon this conviction when they proclaimed the “self-evident truth” that all men are created equal and endowed with inalienable rights grounded in the laws of nature and of nature’s God.

Natural law liberalism is not dead, but it will not survive without a defense. And that defense will have to occur on many fronts—individual, cultural, spiritual, religious, philosophical, and political. It would be foolish to counsel retreat from any one of these fronts, as if they were in competition with one another. I have already pointed out that natural law liberalism can defeat modern liberalism on the grounds of reason alone. But without a legal framework to reinforce those reasons, and a moral culture to give them life, those reasons will diminish in effectiveness, if not pass from our knowledge altogether.

We may be at the dawn of a Dark Age, but if so, let us then use the best of the daylight that remains, rather than hasten the darkness with romantic daydreams of other worlds. This is not wishful thinking. It will require courage and prudence, and perhaps even “our Lives, our Fortunes, and our Sacred Honor.” 

Nathan Schlueter is an associate professor of philosophy at Hillsdale College.

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