This essay is part of a series on Liberalism. See the full collection here.
I am again gratified and grateful for this debate about the American experiment with my friends Nathan Schlueter and Phillip Muñoz. Of course, a subject of this importance deserves sustained attention, and I can only hope that this discussion will continue in many venues, as this, our last round at Public Discourse, concludes. While I am given the last word here, clearly the last word on the matter hasn’t been spoken.
Today I challenge Schlueter’s view that the founders sustained the pre-modern natural law tradition. Even then-contemporary opponents of the founders’ handiwork recognized that they relied too much on social contract theory, thus presuming a false view of human nature that over time would encourage private interest over public weal, and undermine virtue and religious belief. I also respond to Muñoz’s charge that a recognition of liberalism’s internal logic constitutes a form of Marxist determinism. My analysis has a different pedigree, particularly Platonic and Tocquevillian analyses of democracy’s tendencies.
It’s tempting to point out that Schlueter and Muñoz seem to disagree more with each other than with me: Schlueter insists that “natural law liberalism” grounds the founding as the continuity of ancient and medieval political philosophy, while Muñoz stresses the revolutionary consent theory of political legitimacy—with its defense of “natural rights”—as the founding’s basis. Schlueter admires the founding for building on a centuries-old development of natural law theory; Muñoz admires it for introducing consent as a new and just way to legitimize governments.
While one must grant to Schlueter that many documents of the founding era use the pre-modern language of “common good,” these invocations are often still made in a contractual context, as Muñoz highlights. That is, the pre-modern language has been re-defined by a new philosophical frame.
While accusing me of selective quotations, Schlueter supports his own argument considerably by selective elision. He cites the “common good” mentioned in the Preamble of the Massachusetts Constitution of 1780, but cuts the following part that I’ve italicized: “The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”
What this (whole) sentence shows is that this, along with many invocations of “common good” in the founding documents, cannot be understood to derive from the pre-modern natural-law sense of “common good.” Instead, the idea of “natural law” by this time had been considerably re-defined by the very social contract thinkers whose arguments these passages reflect. The meaning of “natural law”—called by Locke “the Law of Nature”—had been fundamentally changed from its medieval understanding in order to support the individualistic premises of social contract theory. For Locke, as well as Hobbes, the “Law of Nature” is primarily a law of self-preservation. We are not by nature political animals who flourish through the cultivation of virtue in political communities; rather, we are by nature rational calculators of individual advantage.
For both Hobbes and Locke, freedom is our “natural state,” but it is an empty freedom, one defined simply as the absence of constraint. This view of freedom persists after the social contract has been established: Freedom is not the condition of self-rule, as in ancient and medieval theory, but it is the right to “dispose of [one’s] person and possessions” as one sees fit when “the law is silent.”
In other words, for the social contract theorists who influenced the founders, when we are under human law, we are no longer free. Law constrains us when the state deems that we might endanger others or ourselves, but where it is silent, there we are free to do as we wish.
By contrast, for a natural-law thinker such as Aquinas, so long as we act in accordance with natural law, or human law based upon natural law, then we are in a condition of true freedom—we have chosen not what we wish in the absence of human law, but have chosen rightly to place ourselves under law that conforms to the human good.
While Schlueter suggests that the invocation of “common good” in the Massachusetts Preamble is a corrective for reading the preceding, essentially Lockean claim that the basic purpose 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,” we see that the contractual language, including its reference to “natural rights” (not “natural law”), in fact modifies the way we should understand “common good.” The phrase takes on a utilitarian cast, departing from its classical meaning of an objective human good, and replaced by its widespread modern meaning of “mutual advantage.”
Schlueter suggests that we can find supporting evidence for his view among the founders’ contemporaries. The sources we should scrutinize most closely, then, are their critics. If Schlueter is right, then the founders’ classically minded critics should express no concerns about the long-term corrosive nature of their proposals.
Instead, the writings of the Anti-Federalists criticize the founders’ philosophy in several respects: the underlying presence of an individualistic social contract theory; the absence of concern for the cultivation of virtue; and the possibility that the proposed Constitution would foster a society of self-interested, privatistic individuals concerned primarily with wealth and power. I have argued this elsewhere, so I will limit my discussion to criticisms guided by concerns that the founders’ proposals profoundly broke with the classical understanding of politics.
The fear that social contract theory was corrosive, since it held that human beings were thoroughgoing rights-bearing individuals in the pre-political condition, was powerfully expressed in a 1774 sermon delivered in Newburyport, Massachusetts, by the revolutionary and eventual Anti-Federalist, Nathaniel Niles.
In a published version of the sermon Niles asserts early on that “originally, there were no private interests.” Rather, what we regard as our private rights are actually the consequence of political community. He writes that our private rights and interests are “distributed among . . . individuals according as they appear in the eyes of the body politic, to be qualified to use them for the good of the whole.”
This claim follows from his explicit rejection of the Lockean view of property; he argues that our “ownership” of things is premised upon a false understanding of human autonomy. Humans are given nothing that they can call their own, not even their own bodies (contra Locke). All matter belongs ultimately to God, and all possessions are intended for the benefit of fellow citizens and the greater glory of God. Thus, it follows that for Niles, regimes based upon appeal to private right are illegitimate.
Niles expressed a concern rampant among many of the Constitution’s critics—the so-called Anti-Federalists—who saw in the founding documents a logic that would eventually undermine virtue and the proper understanding of true liberty (as the capacity for both self-restraint and virtue) for the sake of liberty defined as absence of constraint.
The Anti-Federalists saw the Constitution as a document that would encourage private interests over public weal, that would undermine religious belief, and that would—in its encouragement to pursue power and wealth in support of private ends—lead to consolidation of power in the government and evisceration of states’ authority.
In sum, while Schlueter argues that I project into a gauzy romantic past a “vague ideal of a pre-modern, communitarian political order,” one finds many arguments among the founder’s contemporaries that discern with remarkable prescience the implicit trajectory of the founders’ liberalism.
If I disagree with Schlueter that the founding offers evidence of an unbroken tradition of natural law theory dating back to antiquity, I at least agree with him that pre-modern natural law theory was essentially correct in its understanding of human nature and politics. On the other hand, I agree with my colleague Phillip Muñoz that the American founding is essentially liberal—grounded by a view of humanity derived from the social contractarians—but I disagree that this is cause for celebration.
Muñoz argues that consent theory offered a new means to political legitimacy. We only consent to a regime that will respect “human equality and the natural rights of mankind,” the rights that we retain from the state of nature (hence, “natural rights”).
This statement obscures two facts that should be well-known to political theorists. First, social contract theory does not necessarily produce a regime that results in extensive natural rights, as we know from reading Hobbes. That is, consent theory is not the necessary prerequisite for avoiding an all-powerful, authoritarian regime (something we know well from our lived experience of liberalism, which looks daily more Hobbesian).
Second, most extant political philosophy before Robert Filmer wholly agreed with Thomas Jefferson that “the mass of mankind has not been born with saddles on their back, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.” But they did not agree that “consent” was the means to avoid tyranny. Rather, political philosophers such as Plato, Aristotle, Cicero, and Aquinas believed that justice was discoverable through human reason, based upon discernible truths about human nature and the created order.
Indeed, liberalism engages in a sleight of hand, suggesting that there is no discernible difference between Filmer and Aquinas (a view that, apparently, Muñoz accepts). It is the long classical tradition that liberal theory really rejects, pretending that every preceding political philosophy was simply a cloak for the arbitrary power of the few in a way no different from Filmer’s patriarchalism.
Social contract theory offers a way to discard questions of the good in favor of procedural legal structures that manage conflict. It is, at its base, a relativistic philosophy. Muñoz celebrates that Madison calls for the duty to worship God (as did Locke), but Madison (as well as Locke) more fundamentally set the stage for the privatization of religion and morality.
Madison and Locke saw the social utility of religion (especially a salutary fear of damnation) as an unavoidable means of enforcing the terms of the social contract, but their main concern was to empty the public sphere of any divisive expressions of religion. This is but a kinder, gentler version of Hobbes, however: In the end, the Sovereign holds both the sword and the crozier, for the Sovereign determines what religious expression is politically acceptable and what public expressions must be suppressed in the name of civil peace. Religion becomes the tool of and subject to the Sovereign, and from the very outset its content is relativized as simply another form of private opinion.
I’m certainly not the first to note the internal logic of liberal toleration, and its power to hollow out the public role of religion (since no mere “opinion” can be permitted to serve as a public reason) as well as, ultimately, religious belief itself. Muñoz accuses me of “Marxism” for my claim that regimes contain an inherent logic that eventually manifests itself more fully over time.
Yet, before accepting that label, I would point him first to certain arguments made by Plato—particularly in Books 8 and 9 of the Republic—that express many of the same points that I have made, especially about the nature of what Plato calls democracy (where freedom is defined as a condition of relativistic license, indistinguishable from the liberty of liberal theory), and its inherent tendency to slide into tyranny. For that matter, Tocqueville is perhaps also nothing more than a rank determinist in Muñoz’s view: The “Author’s Introduction” to Democracy in America speaks of the inevitable rise of democratic equality, an eventuality that filled Tocqueville with a “kind of religious terror” in light of the “ruins it has left in its wake.”
For Muñoz, Tocqueville is confident that statesmen will save us from the same slide into tyranny that Plato describes, but I think a careful reading of Tocqueville is more chastening than Muñoz suggests. All the means that should combat modern democracy’s tendency toward the twin and connected destinations of individualism and soft despotism are eventually subsumed in democracy’s totalizing logic, including local practices of self-government, religious belief in a transcendent God, and even the likelihood of statesmen eliciting the votes of a citizenry that craves a “tutelary State.” I think it’s incautious and overly optimistic to read Tocqueville as a “how-to” book; while he provides modern democracy a powerful set of recommendations and tools, he shows ample fear that democrats will systematically discard them.
Schlueter claims that I am “profoundly dissatisfied with the existential order.” I admit that I am profoundly dissatisfied with the extant order—but, then, I suspect, so are he and Muñoz. This is what makes our disagreement so interesting: We agree that the nation is in a very bad pass. We seem to be a civilization intent on suicide, whether in the form of passing on unconscionable debt to our children and grandchildren, or literally the suicide that comes of an unwillingness even to have children, or to discard them when inconvenient.
While the nation’s elites cry out over the injustice of limiting marriage to man and woman (indicting the whole history of humanity), they turn a blind eye to the destruction of millions of fellow citizens in the womb and somehow fail to notice that a third of the nation’s children are growing up in fatherless households. While they decry the devastation of the “environment” (not “nature”—that would be too normative), they consume no less, and likely far more than the average, and cannot spare a word of concern about the consumption of the future to finance the present. The entire political class—reflecting the infantilization of the citizenry, no doubt connected to a debased popular culture—is incapable of articulating the true extent of, and demands required by, the extraordinary challenges we face.
Muñoz challenges my patriotism. As a citizen I am grateful for many blessings, though in frankness we should admit that many of our blessings come from deep injustices committed by our nation. But patriotism should not obscure conclusions that a political theorist must rightly reach—I believe we must be honest about the sources of our present discontents, and for too long my conservative friends have sought to lay blame on every cause but the very liberal underpinnings of the American regime itself, even those liberal principles present at its creation.
This is a form of self-deception that the political theorist whom I suspect that Muñoz and Schlueter most admire—Leo Strauss—did not practice. Strauss acknowledged that America was a far superior regime than Nazi Germany and communist Russia, and expressed gratitude for the liberty he found here—but never held that it was immune from probing criticism, particularly to the extent that its basic beliefs derived from the rejection of classical political philosophy. The crisis of modernity is not the result of an imported German philosophy; rather, the “first wave” of modernity, from which the other waves arose, was inaugurated by Machiavelli, Hobbes, and Locke. America (according to Strauss, at the conclusion of his essay “Three Waves of Modernity”) was its direct progeny.
I conclude by restating the question that I posed in my previous response to Schlueter. If we are to believe that the American founding represents the culmination of a long and unbroken tradition that stretches back to Plato, Aristotle, Cicero, and Aquinas, then how did that tradition disintegrate so quickly? Why was that 2500-year tradition overturned in less than a century after the founding, by Schlueter’s telling?
Or, if Muñoz is right—that America is the first nation in the history of the world to be founded on a legitimate basis—then how did we come to have the libertine culture (not only of the immoralists of Hollywood whom he indicts, but also of the economy of Wall Street and the advertisers on Madison Avenue) that we have now, so soon after the first legitimate founding? If the founding was so near-perfect (for the differing reasons each suggests), why wouldn’t we see today evidence of a nation of extraordinary virtue, moderation, frugality, self-limitation, concern for future generations, and a deeply shared conception of the Good?
I suggest that we have today more the country that springs from our political DNA than one that doesn’t. I don’t romanticize that we can “go back”—we can only go “forward”—but we cannot remain on our current path, one whose footsteps can be traced back to our very origin. We can change direction and even effect a kind of “regime-change,” though not by force of arms nor dictate from Washington, DC. Rather, we can live as a kind of “contrast society” to liberal America—in our homes, our neighborhoods, our communities, and among our friends—even as we seek a change in America’s fundamental worldview. I am grateful to count among my friends Nathan Schlueter and Phillip Muñoz, who show us how to argue about the most serious things with the greatest civility and decency.