We are social animals, dependent for our physical survival and mental well-being on some degree of sociability. To speak of natural rights is to bring the theoretical into the service of the practical: Are there things we must do, and must not do, in order to improve the probability of commodious and worthy living for creatures with our natures? Are there claims—natural rights—that, in a good society, people should be able to effectively assert in order to protect such ways of living? At no point does one need to feel bound to postulate that natural law, in the sense described here, requires a transcendent lawgiver. One can believe in moral knowledge teased from reflection on human nature and historic experience without believing that this is related to God’s revealed intentions.
If there is a God, and if God has intentions regarding us, presumably He caused them to be incorporated into nature. This is the optional theological foundation of natural rights doctrine. It is not a necessary foundation. A secular basis for natural rights reasoning is that rights are natural in the sense that they are discovered by something that is natural: reason. But the enjoyment of natural rights requires something that is not natural, that does not arise spontaneously and amply from nature’s processes. For rights to be established and defended in a social context requires certain virtues; so does the worthy use of those rights. The language of natural law, which can supplement the natural rights vocabulary, need not presuppose a divine lawgiver. Rather, this language is merely a way of talking about the appropriate ends and efficient means for human flourishing. Natural law discourse is like scientific discourse in that it is empirical: If, as experience and philosophical reasoning suggests, X is a desirable end, then experience also suggests that Y is conducive to that end.
JEFFERSON’S EQUIVOCATION
Hence the meaning, and unimportance, of what C. Bradley Thompson calls “Jefferson’s equivocation” in the Declaration’s first paragraph when he referred to “the Laws of Nature and of Nature’s God.” Jefferson, Adams, and others were, Thompson argues, firmly in a tradition “which said that the moral laws of nature would still be valid and operational even if, in the words of Grotius, ‘there is no God, or that he has no Care of human affairs.’”24 Some Americans thought their rights derived from history; others thought their rights could be read in the book of nature. This was a distinction without much, if any, difference. Both sets of Americans were, without quite knowing it, rule utilitarians. That is, they were saying that certain behaviors, practices, and conventions are, as a general rule, conducive to happiness and flourishing.
Among the Founders the ideas of natural law and natural rights were severed from any necessary connection with religion and transcendence. Nature, including human nature, can be known by reason unassisted by revelation. So, therefore, can the rules of ethics and politics that are pertinent to human flourishing. They are learned, as most things are, by trial and error, through which humanity learns what is and is not conducive to flourishing. It is therefore difficult, and perhaps pointless, to distinguish between, on the one hand, natural law and natural rights reasoning and, on the other hand, the reasoning of rule utilitarianism. Both those who reason in the vocabulary of natural law and natural rights and those who reason as rule utilitarians are recommending behaviors and arrangements they consider, as a general rule, most useful to creatures with our natures. This is what Thompson calls “an ‘if-given-then’ conditional imperative.”25 If you want to achieve a particular outcome, given the facts about human beings, then the following rules are apposite.
In the epigraph that begins this chapter, Alexander Hamilton speaks of natural rights as written “in the whole volume of human nature.” Nature is, like a book, a volume that can be read by anyone with basic literacy about the human condition. Hamilton’s sentence went on to say that the rights are written “by the hand of the divinity itself.”26 That, however, was almost a verbal tic among eighteenth century writers, lacking theological meaning.
How can we say that convictions about natural rights were important to the statesmen who framed the Constitution that accommodated slavery? Here is how: The Framers were statesmen. “There is,” wrote Leo Strauss, “a universally valid hierarchy of ends, but there are no universally valid rules of action.” Steven Hayward, a student of Straussians who shares their belief that statesmanship is a philosophically serious subject, improves upon Strauss’ formulation by writing: “The prudence of the statesman may be described as the combination of attachment to principle along with a profound understanding of the circumstances.” Two archetypal instances of prudence in American statecraft concern slavery. Had the Constitution’s Framers not accommodated the existence of slavery, the document would not have been written, and the nation would have been stillborn. As Harry Jaffa, a student of Lincoln’s statesmanship, put the point, “If [the Founders] had attempted to secure all the rights of all men they would have ended in no rights secured for any men.” And had Lincoln not been willing to accept the continuation of slavery where it was—while attempting to confine it there, and thereby put it “in the course of ultimate extinction”—he could not have won the presidential office from which he steered the nation through the war that saved the Union. As Jaffa wrote, “Negroes have voting rights and serve on juries today owing in large measure to the fact that Lincoln in the 1850s disavowed any intention to make them voters or jurors.”27
How does a society decide what the natural rights are? The answer is: It argues. The argument can never be concluded because it has a large empirical dimension, the ongoing accumulation, from history and contemporary life, of evidence pertinent to what Randy Barnett, very like C. Bradley Thompson, calls “given-if-then” reasoning: Given the constancy and regularities of human nature, if our aim is the flourishing of creatures of this nature living in close proximity to one another, then the following institutional arrangements are requisite for securing the rights deemed, on the basis of a constantly enriched body of evidence, necessary, or at least powerfully conducive to, such flourishing.28 Any political regime is necessarily, unavoidably built in a way that encourages and discourages certain habits. Indeed, regimes are defined by the moral dispositions they nurture, intentionally or otherwise. A regime may eschew the enforcement, or even the promotion, of the good life, but it cannot be indifferent to the prevention or discouragement of certain gross evils. Or to the encouragement of an array of attitudes and aptitudes deemed conducive to human flourishing. So public policy must be informed by political philosophy.
Politics can be what Aristotle called the “master science” because government, having a monopoly on legal authority and the legitimate force to impose it, can undertake to control the education and other sources of norms by which society is regulated.29 Limiting such uses of political power is a political choice, one that does much to define the liberal democratic political order. The empirical case for limited government is that although human beings have something in common—human nature—they are different in capacities and aspirations. From this it follows, not logically but practically, that government cannot hope to provide happiness to all. The most it can reasonably expect to provide are the conditions under which happiness, as each defines it, can be pursued.
So, let the argument—actually, the interlocking arguments—boil on: What do we mean by human nature? How do we sort the natural attributes—those constitutive of human nature—from those acquired from nurturing and from culture? By what criteria should we measure human flourishing? What do history and current practices reveal about how institutions—of civil society and government; political and economic and cultural institutions—contribute to this?
Intelligent, learned, public-spirited people will differ, often strenuously, about all of these matters. Of course they will. This is what makes politics in an open society—a society based on persuasion—so demanding and so exhilarating. But differences debated can converge, reaching, if not consensus, at least clarity about disputes and a narrowing of differences. What is important is to r
eorient American debate about these questions and by so doing to insinuate the Founders’ natural rights vocabulary back into our political discourse. This will buttress that which the Founders created for the purpose of securing natural rights: limited government. We shall see the direct pertinence of the reorientation in subsequent chapters dealing with, among many other things, the role of the judiciary in the supervision of democracy and with the relationship of the government to the economy.
The reorientation I recommend is radical relative to current political practices. It reverts to the radicalism of the American Revolution, as explained by historian Gordon Wood. This radicalism consisted in its overturning a society of deference. The social conditions normally considered precursors of revolutions—gross poverty and severe political oppression—were not present. “In fact,” Wood writes, “the colonists knew they were freer, more equal, more prosperous, and less burdened with cumbersome feudal and monarchical restraints than any other part of mankind in the eighteenth century.” Nevertheless, says Wood, it is wrong to say that the revolution was merely an intellectual event, the culmination of a constitutional argument about American rights, a dispute that had nothing to do with social conditions. These are elements of the argument that ours was a conservative revolution, an argument that Wood emphatically rejects. He insists that the American Revolution “was as radical and as revolutionary as any in history,” but was “radical and social in a very special eighteenth-century sense.”30 It severed the conception of society from the conception of government. Hitherto, the assumption was that the state precedes and sustains society; America’s revolutionary idea was to reverse that formulation. What made the colonists restive, and then revolutionary, was, Wood writes, their acute sense that government was the root cause of their social grievances:
Social honors, social distinctions, perquisites of office, business contracts, privileges and monopolies, even excessive property and wealth of various sorts—all social evils and social deprivations—in fact seemed to flow from connections to […] monarchical authority. So that when Anglo-American radicals talked in what seems to be only political terms—purifying a corrupt constitution, eliminating courtiers, fighting off crown power, and, most important, becoming republicans—they nevertheless had a decidedly social message.…[I]n destroying monarchy and establishing republics they were changing their society as well as their governments, and they knew it.31
The colonists lived, Wood argues, in a society that was “traditional in its basic social relationships and in its cultural consciousness. All aspects of life were intertwined” in that authority and liberty depended on personal relationships. The colonists “thought of themselves as connected vertically rather than horizontally, and were more apt to be conscious of those immediately above and below them than they were of those alongside them.” Gazing down, those at the top saw those below them as almost a different species. They were “the grazing multitude,” in the words of one member of the elite, a Virginia planter named George Washington. Indeed, paternalism and patriarchy “may even have been stronger in America than in England precisely because of the weakness in the colonies of other institutions.” Counting not only slaves but also others who were indentured or otherwise bound in legal dependency, “at any one moment as much as one-half of colonial society was legally unfree.” The sense of “personal clientage and dependency” was reinforced by the fact that provincial governments were small crumbs from the upper crust: “The combined membership of the New York colonial assembly and council was even smaller than a committee in today’s House of Representatives.”32
Yet in spite of all this, Americans were, in Edmund Burke’s phrase, quick to “snuff tyranny in every tainted breeze.” America was, Wood says, “primed for republicanism” because “it had no oppressive established church, no titled nobility, no great distinctions of wealth, and no generality of people sunk in indolence and poverty.” Furthermore, colonial America’s defining surplus—land to the west—powerfully beckoned as a ladder up from dependency and thus it worked as a solvent of “the ligaments of patronage and kinship.”33
Burke considered it a signal virtue of the English political tradition that its constitutional order emerged slowly, organically from the nation’s organic history rather than being “formed upon a regular plan or with any unity of design.”34 A conservative sensibility does indeed dispose people against attempting the rearrangement of the state in accordance with a preconceived design. This, however, is essentially what America’s Founders did. Nations are made in two ways, by the slow working of history or the galvanic force of ideas, or by both. Most nations are made mostly the former way, emerging slowly from the mist of the past, gradually coalescing within concentric circles of shared sympathies, with an accretion of consensual institutions. One nation, however, was formed and defined by the citizens’ assent to a shared philosophy. The United States was from its beginning a nation of immigrants whose social diversities are subsumed beneath a shared dedication to a creed.
Before there could be this creedal nation, this extensive republic “dedicated” to certain self-evident truths, the American Revolution had to be followed quickly by Madison’s revolution in democratic theory. Prior to him there had been a pessimistic consensus among political philosophers: If democracy were to be possible, this would be only in small societies akin to Pericles’ Athens or Rousseau’s Geneva—“face-to-face” societies sufficiently small and homogeneous to avoid the supposed great threat to freedom: “factions.” In turning this notion upside down—this is what a revolution does—Madison taught the world a new catechism of popular government:
What is the worst result of politics? Tyranny. To what form of tyranny is democracy prey? Tyranny of the majority. How can that be avoided? By preventing the existence of majorities that are homogeneous, and therefore stable, durable, and potentially tyrannical. How can that be prevented? By cultivating factions, so that majorities will be unstable because they are short-lived coalitions of minorities.
The cultivation of factions is what an “extensive” republic does by its sheer scale. This was Madison’s sociology of freedom, which he explained in his contributions to the most penetrating and influential newspaper columns ever penned—the Federalist Papers, to which Alexander Hamilton and John Jay also contributed. In Federalist 10, Madison wrote that “the extent” of the nation would help provide “a republican remedy for the diseases most incident to republican government.” He said: “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.” Because “the most common and durable source of factions” is “the various and unequal distribution of property,” the “first object of government” is the “protection of different and unequal faculties of acquiring property.” The maelstrom of self-interested behavior that is characteristic of Madisonian democracy often is not pretty. However, Madison knew better than to judge politics by aesthetic standards. He saw reality steadily and saw it whole, and in Federalist 51 he said people could trace “through the whole system of human affairs” the “policy of supplying, by opposite and rival interests, the defect of better motives.”35
The Founders’ philosophy began with accommodation of, not cures for, human defectiveness. Harvey C. Mansfield rightly says of the Founders, “It is true that they distrusted democracy, but not because they loved aristocracy. They distrusted democracy for the same reason they rejected aristocracy—because they distrusted human nature.”36 The importance of politics is that because of human nature, the world is an unfriendly place when it is without government. It is, however, often equally or more unfriendly when bad governments are unlimited and unleashed to work their wills upon subjects who are subject to whatever their government wills. Conservatism’s foundational premise is that the world is an inherently dangerous place and politics is necessary to mitigate its dangers.
But politics itself
also is dangerous. It can be the ultimate danger because it can organize violence. In the interest of social peace, modern politics have pushed the higher aspirations of the ancients to the margins of social life. To modern political philosophers, those aspirations were at best unrealistic and at worst dangerous. Henceforth, politics would not be a sphere in which human nature is perfected; the political project would not include prodding people to their highest potentials. Instead, modern politics would be based on the assumption that people will express, and act upon, the strong impulses of their flawed natures. People will be self-interested. The ancients had asked, What is the highest attainment of which mankind is capable and how can we pursue this? Hobbes and subsequent moderns asked, What is the worst that can happen and how can we avoid it?
In 1762, fourteen years before America’s Founders launched the first modern nation, Jean-Jacques Rousseau wrote in The Social Contract: “Those who dare to undertake the institution of a people must feel themselves capable, as it were, of changing human nature, of transforming each individual […] into a part of a much greater whole, […] of altering the constitution of a man for the purpose of strengthening it.”37 Here we have the beginning of the great divide in modern political thinking, and a germ of American progressives’ collectivist tendency. America’s Founders believed that in creating a polity, statesmen must take their bearings from unchanging human nature. They did not aspire to a political system so cleverly constructed that no one needs to be public-spirited: They did, however, want a system that did not presuppose an abundant and constant supply of public-spiritedness.
For the Founders, law existed mostly for mundane purposes. The word “mundane” has come to mean dull or boring, but its primary meaning is “of this world.” The law’s primary purposes are to keep the peace and facilitate quotidian transactions—to resolve disputes and regularize behaviors and expectations. The law is not supposed to be salvific; it is not written to perfect either the individual or the community. When government undertakes, by methodical policy, to improve and fix the citizenry’s consciousness, the citizenry ceases to be composed of citizens, properly understood. When government presumes to adjust the attitudes of the people, it vitiates the concept of consent, from which the just powers of government arise.
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