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Editor’s note: This is the first of a three-part series.
The American regime that resulted from the American Revolution differs from today’s in size, scope, and character. We do not elaborate the contrasts. Rather, we ask: Whence came these differences between the former’s constitutionally limited pursuits of modest objectives—domestic tranquility, justice, the common defense, the general welfare—and the latter’s unlimited administrative discretion over everything from the planet’s climate to the proper exercise of religion? How could a regime evolve into something so like its own negation?
Specifically: are modern America’s institutions and mores departures from its founding principles, or are they the logical, necessary consequences of those very principles? Did the Founders’ principles undergo corruption, or did they bear the fruits inherent in them? How does the DNA that America’s Founders wrote into our roots relate to our present regime? What is the present regime’s genetic code? Regardless of the founding principles’ influence—restraining or propulsive as they may be—by what mixture of political and cultural mechanism did the changes occur?
Properly, these questions are historical. Too often, however, debate about the character of America’s DNA devolves into abstract exegeses of intellectual and moral principles, as if the Founders’ minds were tracking on one or another set of mutually exclusive views of man and society. We suppose that each track produces competing versions of what those principles were or ought to have been, and that these principles, like great trees’ seeds, predetermined America’s character—either to live by natural law, the Declaration’s “laws of nature and nature’s God,” or to satisfy whatever desires the natural right of selfish autonomy might engender.
Although—as we shall argue—this philosophical dichotomy does not explain everything, it counts for a lot.
If, as Abraham Lincoln argued to Stephen Douglas, the Declaration of Independence defined the new nation in terms of a set of divinely ordained natural laws, then any and all departures from those laws would pervert it.
The laws cited by the Declaration gave meaning to the Constitution. They bound the government and the people. America was not free to become indifferent to, never mind to accept, slavery (and, by implication, to anything else that violated those laws) without ceasing to be itself. But if, as Douglas argued to Lincoln, growth and greatness themselves are the American regime’s “law of life,” then any attempt to restrain the most powerful desires that arise within it must choke it. In that case, Barack Obama’s The Audacity of Hope is correct that the U.S. Constitution is merely “the way by which we argue about our future.” Consequently we—or rather, whoever prevails among us—are bound only by our latest appetites. If those lead us to accept, say, polygamy, or to trade the Bill of Rights for rule-by-administration, so what?
Clearly, whether the men of the American Revolution and founding thought in terms of natural law or of natural right makes the difference between courthouses engraved with the Ten Commandments, and ones whose portals bear the words inscribed over Rabelais’ Abbey of Theleme: “Fais ce que vourdas”—Do what you want (limited only by what you can get away with).
Focus on the pure forms of these philosophical points of departure, however, diverts attention from the founding generation’s forma mentis, which grasped philosophical doctrine through the medium of the practical questions at hand. Foremost among these was the struggle against the British regime. Although America’s founders are not here to pronounce on what may have been implicit in their hopes for the future, they were clear enough about what they were revolting against, as well as about about the basis upon which they revolted.
What Freedom Means
The founding generation was steeped in the concept of natural law. But it had not distinguished that concept from “natural right” as clearly as we do.
Their education in in Greco-Roman thought taught them to regard man as a social animal who is born, lives, and dies in families, tribes, and various kinds of political arrangements, and who has a fixed, knowable nature. As Christians they believed (along with Jews) that man is created “in the image and likeness of God,” and that this status between God and the rest of creation defines what is good for man. Such secularists as there were among them joined in believing that right, for man, is to live according to his nature. The Christian addendum to classical thought also stresses that because men are equally God’s creatures, none may rule another without the other’s consent, and that duties to God are separate from duties to earthly powers. All this portends limited government and defines “freedom” as the capacity to choose between good and evil, as these categories exist in the immutable “laws of nature and nature’s God.”
So what kind of freedom did America’s founders mean to establish? Fact is that, as they framed the American regime, they used the terms natural law and natural right interchangeably. Hence, they never choose explicitly between the implication of these terms as we have come to understand them.
Competing for their attention was the post-15th century (previously adumbrated in Greek thought) construct of the individual—radically unattached and inalienably self-interested. This individual first appears in a “state of nature.” Positing this “state” makes it impossible to think of creation and creator, as well as to consider for what purpose man might have been created. In short, it makes it impossible to think about what might be right for man by nature. The “nature” of this “state of nature” has really only one law, one natural right: self-preservation. What is good is whatever that individual decides for himself at any given time may be consistent with that right.
Consequently, any and all familial and political bonds are naturally artificial. Freedom means the unfettered natural right, collective as well as individual, to decide what good and evil might be according to the inalienable priority of self-preservation. That in turn means discovering and satisfying one’s own ever-changing sentiments. The state has the greatest freedom to satisfy desires.
‘Right’ Rightly Understood
So what kind of freedom did America’s founders mean to establish? Fact is that, as they framed the American regime, they used the terms natural law and natural right interchangeably. Hence, they never choose explicitly between the implication of these terms as we have come to understand them.
They left no doubt, however, that their peculiar notion of right is something at the same time ancestral, natural, and divinely ordained.
Today’s dominant philosophical-political assumptions make it difficult for us to understand that. Since the Founders did not maintain the strict opposition between the concepts of “nature” and “convention” or “custom” to which academic philosophy has accustomed us, they found nothing incompatible about claiming that, as Britain was violating rights established by God and Nature, it was also violating the ancient rights of Englishmen—and vice versa.
Our difficulty in understanding this stems in part from the assumption—as wrong as it is widespread—that history has moved more or less uniformly from less freedom to more freedom, that America’s Founders were revolting against the middle ages’ legacies (despotism mixed with and veiled by religion) and that they, Children of the Enlightenment, were trying to make it possible for people to live however they like.
Consider: this British regime had been ruling in the same way for almost 400 years. The Americans were rebelling against the 18th century’s ancien regime’s established customs. But they were doing so in the name of a regime that was even more ancien, whose customs were no longer customary but were somehow right in themselves. Where had these customs come from? What endowed them with right?
Our difficulty in understanding this stems in part from the assumption—as wrong as it is widespread—that history has moved more or less uniformly from less freedom to more freedom, that America’s Founders were revolting against the middle ages’ legacies (despotism mixed with and veiled by religion) and that they, Children of the Enlightenment, were trying to make it possible for people to live however they like.
In reality, the Founders knew that the regime that was oppressing them was anything but medieval. They faulted it for having trammeled medieval and downright ancient rights. Nor, aside from Franklin, were they libertines. To them, freedom was the capacity to live life free from arbitrary power. This is something of which there had been much more in remote times than in their time.
Insofar as the American revolution was about custom, it was about restoring customs of limited government, which they believed was also divinely ordained.
In fact, the British crown against which the Americans were revolting (Parliament had become the senior partner within it) was not a relic of the middle ages. Like other European monarchies, Britain had transcended medieval political forms as well as the Christian notion of right as independent of power. The regime against which the Americans revolted was like the rest of Europe’s in having shed all but the trappings of an earlier age.
Why the Middle Ages Matter
The previous millennium’s story had been similar, whether in Spain, France, Germany, or England. The Germanic tribes that had overrun Western Europe consisted of free men. They had done away with Rome’s imperial bureaucracy. The absence of easy communication between towns as well as between countless corners of countryside, abetted the tribes’ independence from one another, as well as the autonomy of their components.
All this meant that the rules of life grew in diverse ways throughout Europe, and guaranteed that arrangements within medieval society would be flexible. All arrangements were inherited and hence became customary. Arrangements between nobles, towns, and kings became the charters of freedom, from Spain’s “fueros” to England’s Magna Carta. Since Christianity provided the only common intellectual guide, these arrangements had to be justified in terms of what is right and wrong in itself. Hence, the notion of consent of the governed became the essence of the medieval legal principle of jus et consuetudo regni (Ranulf de Glanville, 1180). Here we see diversity born of selfishness and necessity, ingrained by custom, blessed, and amplified by Christianity’s teaching of human equality.
Medieval Europe’s complex polity, which such as John Fortescue’s De Laudibus Legum Angliae (1394-1480) described at length, and which Aristotle would have called a mixed regime, is what the kings of the Baroque age had destroyed. In England, Royal commissioners enforced the king’s will. Local custom had given way to law made by the king’s judges or by parliament.
Arrangements between nobles, towns, and kings became the charters of freedom, from Spain’s “fueros” to England’s Magna Carta. Since Christianity provided the only common intellectual guide, these arrangements had to be justified in terms of what is right and wrong in itself.
Elsewhere, though the details varied, the story was much the same. Tocqueville’s The Old Regime And The Revolution describes the result: “The central power encroached on every side upon decaying local franchises. A hierarchy of public functionaries usurped the authority of the nobles. All these new powers employed methods and took for their guide principles which the Middle Ages either never knew or rejected, and which, indeed, were only suitable for a state of society they never conceived.”
The kings just wanted more power. But they did not understand that, as they gathered it, they were building Leviathans. Having the power, as Blackstone said, “to do anything not naturally impossible,” these would fall for the temptation to do all that and more. The crown had declared itself the arbiter of right and wrong over all things. By what right? Britain was no stranger to the European doctrine that kings exercised absolute power. Louis XIV claimed divine right by papal dispensation. Henry VIII’s heirs headed the church and made rules about matters religious as well as secular. This of course was a negation of Christian orthodoxy as well as a departure from medieval practice.
What the Founders Were Up To, Really
In sum, the Americans sought to recover a right to self-rule which they supposed to come from God and which they recalled as the (by then largely superseded) custom of England. As Thomas Jefferson pointed out in The Rights of British America (1774), they harked back to Anglo Saxon government, limited by the people’s ancestral rights understood as natural rights. And, as James Wilson argued in his 1790 inaugural lecture to the first American law school, attended by a Who’s Who of the Founders, Americans disagreed with Blackstone’s notion that right is the will of the sovereign. In America, said Wilson, law was to be right insofar as it is right by nature.
Regardless of their precise understanding of natural law and natural right, of nature and convention, the American revolutionaries were not trying to transcend Christian or classical notions of right and wrong, much less were they trying to create a centralized state capable of instituting whatever moral or social order anyone in power might want.
Regardless of their precise understanding of natural law and natural right, of nature and convention, the American revolutionaries were not trying to transcend Christian or classical notions of right and wrong, much less were they trying to create a centralized state capable of instituting whatever moral or social order anyone in power might want. If the latter had been their intention, they would hardly have crafted a Constitution that makes it excruciatingly difficult for the government to act. Had they meant to institute the unbounded capacity to satisfy their own desires, they would not have sought to re-establish medieval customs. Rather, they would have grasped and reinforced central authority over all matters, including religion. That is what their contemporaries in France did, about whom more below.
No. Although Progressives have succeeded in making the American regime open-ended, they are wrong historically. It was not meant to be that.
Follow these links to continue reading part two and part three.