The American Founding and the Social Compact

The American Founding and the Social Compact

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American k ounding and the Social Compact A

Edited by Ronald J. Pestritto andThomas G. West

LEXINGTON BOOKS

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Lanham * Boulder New York Oxford

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LEXINGTON BOOKS Published in the United States of America by Lexington Books An Imprint of The Rowman & Littlefield Publishing Group 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706

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Library of Congress Cataloging-in-PublicationData The American Founding and the Social Compact / edited by Ronald J. Pestritto and Thomas G. West. p. cm. Includes bibliographical references and index. ISBN 0-7391-0664-3 (alk. paper)-ISBN 0-7391-0665-1 (pbk.: alk. paper) 1. Political scienceunited States-Histoyl8th century. 2. Social contract. I. Pestritto, Ronald J. 11.West, Thomas G., 1945JA84.USA69 2003 320.1’0973-dc2 1 2003004058 Printed in the United States of America

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To our friend Thomas B. Silver, Patriot and Scholar Repiescat in pace

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Contents

Preface RonaldJ. Pestritto and Thomas G. West

1 Locke on the Social Compact: An Overview 2

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4 5 6

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Peter C. Myers Social Compact, Common Law, and the American Amalgam: The Contribution of William Blackstone Michael Zuckert Hume, Historical Inheritance, and the Problem of Founding Bradley C. S. Watson The Political Theory of the Declaration of Independence Thomas G. West Thomas Jefferson and the Social Compact Jean M. Yarbrough From Subjects to Citizens: The Social Compact Origins of American Citizenship EdwardJ. Erler Alexander Hamilton and the Grand Strategy of the American Social Compact Karl Walling John Adams’ “Hobbism” John Paynter

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9 Benjamin Franklin and the Theory of Social Compact

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Steven Forde Index About the Contributors

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Preface RonaZdJ Pestritto and Thomas G. West

m o z e n s of books on the American founding are published every year. Most of them have at least something to say about the political thought of that day. But few discuss that thought in the spirit of the present collection. The current tendency is to emphasize the passionate disputes that gripped the nation in its early years. Scholars sometimes even become partisans of the particular man they happen to be writing about. Biographers of Franktin disparage John Adams, while admirers of Jefferson openly despise Hamilton. Our aim is different. While others stress the differences among the Founders, we intend to show the coherence and intelligibility of the consensus version of the political theory of the founding era. That theory lacks a definitive name. We will call it the theory of the social compact. This term, used in the Massachusetts Constitution of 1780 and in numerous other founding-era documents, implies that human beings are by nature free individuals, so that any legitimate government must be formed by the people’s free choice-a social compact based on their voluntary consent. Further, the social compact idea, beginning with the free individual in the state of nature, leads to the conclusion that the purpose of government is to protect individuals in their just and natural rights to life, liberty, and the pursuit of happiness. In spite of the partisan politics of the founding period (some of which was as bitter as anything in American history outside the Civil War), there was a broad consensus among the leading Founders on these basic principles of government. The purpose of this collection is to make that consensus clear, to explain what it was, and to show why so many of our forebears

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were convinced that their theory of politics was based on permanent truths about human nature. The present book is the first of a planned three-volume series on American political thought from the founding to the present. Each of the three will have been based on a conference in the Philip M. McKenna Conference Series in American Political Thought, held at the University of Dallas. Our theme in the second volume will be the challenges to the Founders’ social compact theory in the nineteenth century. The third will be on the twentieth- and twenty-first-century defeat of the Founders’ approach (so far incomplete) by modern liberalism and certain elements of modern conservatism. Our object throughout the three books will be to understand the thought of the past, not as an object of historical curiosity, but as part of a great debate over the destiny of America. We take these ideas of the past as serious claims about what is to be done-claims that are to be rejected only after they have been carefully considered and dispassionately evaluated. The nine chapters in this book fall into three groups. First is the social compact theory as seen through the eyes of European philosophy. Peter Myers and Michael Zuckert examine the theory as it appears in John Locke (the originator of the American variety of the theory) and William Blackstone (who applied Locke’s argument to the British common law). Brad Watson gives us an overview of an early critic of the theory, David Hume. The second group of three chapters is on what one might call the official American version of the social compact argument. Thomas West presents an overview of the Founders’consensus, while Jean Yarbrough focuses on Jefferson, who was the author of the greatest consensus document of them all, the Declaration of Independence. Edward J. Erler’s chapter, on citizenship in social compact theory, shows how the primacy of the individual in the theory led to an understanding that citizenship can only come from the mutual consent of both sides (citizen and nation) and cannot be based on the accident of one’s place of birth. Our book concludes with three chapters on individual Founders. Karl Walling shows us Hamilton’s reflections on the need to produce an effective military to enable government based on the social compact to survive. John Paynter examines the dramatic difference between John Adams and the philosopher Thomas Hobbes, who has given the social compact theory a bad name for several centuries. Finally, Steven Forde’s Franklin was

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a reluctant adherent of the theory, although he was a highly energetic advocate of the cultivation of the kind of knowledge and character that would solidify the republican order in America. The editors would like to express their heartfelt thanks to the Philip M. McKenna Foundation and its chairman T. William Boxx, through whose generosity we held the 2001 conference at which the contributors to this volume first presented their arguments. The McKenna Foundation also supported the editing of the manuscripts for publication.

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Locke on the Social Compact: An Overview Peter C. Myers

%e idea that political society originates in a compact among its members pervades the American Founding, from revolution through ratification, and continues to inform the most significant controversies in American political life at least through the Civil War.As one of the most insightful present-day students of American political thought observes, “The idea of compact is at the heart of American constitutionalism.”’ In its teaching that all men are created equal and therefore that government derives its just powers from the consent of the governed, the Declaration of Independence-which, according to its principal author, expresses “the harmonizing sentiments of the daf2-clearly incorporates the compact theory. Likewise, the acknowledged father of the Constitution holds that “the idea of a compact among those who are parties to a Govt. is a fundamental principle of free G~vt.”~ To understand the foundations of American constitutionalism,therefore, it is necessary to understand the essentials of that “Theory” to which James Madison, like other American Founders, recurs. Yet, although the political soil and climate of early America clearly present very favorable conditions for the social compact theory to take root and spread, that theory neither originates nor receives its classic exposition in the work of any American. To understand the foundations of American constitutionalism, it is necessary to understand the essentials of the social compact theory in what the Founders consider its classic exposition, which appears in the political philosophy of John Locke. As the idea of compact lies at the heart of American constitutionalism, so, too, it lies at the heart of Locke’s political philosophy. Political society 1

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originates, says Locke, “where-ever any number of Men, in the state of Nature, enter into Society to make one People, one Body Politick under one Supreme Government.”The mode whereby the members thus incorporate themselves is their “original Compact” (TT 11.89, 97; cf. 171).4 Stated in summary terms, this idea may seem familiar and even simple to us. In fact, its seemingly simple appearance masks an extraordinarilycomplex and subtle argument, a complete account of which would require a comprehensive exploration of the whole of Locke’s political philosophy. The purpose of the present, noncomprehensive discussion is to provide an introductory overview of this argument. I consider the terms and principles of the social compact as Locke conceives of it and their implications for the proper ends, limits, and forms of governmental power. I begin, however, by considering the understanding of the state of nature upon which Locke’s conception of the social compact is based.

THE STATE OF NATURE AND THE PROBLEM OF MORAL RATIONALITY The social compact, as Locke conceives of it, is not a blueprint for constructing the ideal, perfect political order. Instead, it represents the solution to a problem-the problem of the state of nature. By originating Civil Government,” the fundamental, social-political compact “puts an end to the State of Nature between Men.” It supplies the “proper Remedy for the inconveniences of the State of Nature” (11.14,13; cf. 90). It is with this problem in mind that Locke declares, near the beginning of the Second Treatise, that “to understand Political Power right, and derive it from its Original, we must consider what State all Men are naturally in” (11.4). For this reason, it is useful to begin our discussion of the social compact with a consideration of the state of nature. In Locke’s familiar description of its formal qualities, the state of nature is “a State ofperfect Freedom” and of “Equality,wherein all the Power and Jurisdiction is reciprocal.” It is the condition of “Men living together according to reason, without a common Superior on Earth, with Authority to judge between them” (11.4,19; cf. 87). Locke hastens to add that the state of nature “has a Law of Nature to govern it” (6).H e declares that “it is certain there is such a Law” and even that the law of nature is inscribed or innate, “plain . . . in the Hearts of all Mankind” (12, 11). These reassurances may appear, at least for the moment, to soften the implications

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of the “very strange Doctrine” that in the state of nature, “everyMan hath a right t o punish the Oflender, and be Executioner ofthe Law OfNature” (9,8; 7-13 generall~).~ Nonetheless, the defining feature of that state is that “there is naturally no superiority or jurisdiction of one, over another.” Whatever the natural differences and inequalities among human beingswhether in physical force or even, most notably, in “Excellencyofpart? or virtue-they do not establish a natural right of any person to rule any other (7,54). The state of nature thus appears initially in the Second Treatise as an abstract idea, defined in negative terms. For this reason, as Locke implicitly acknowledges, it may appear to some as a mere contrivance, fashioned to support preconceived ideological conclusions.6 Against this sort of objection, he emphaticallyaffirms the historical reality of the state of nature: “all Men are naturally in that State, and remain so, till by their own Consents they make themselves Members of some Politick Society” (11.15; also 14,100-103). In this crucial respect, Locke agrees with Hobbes and implicitly opposes later, neo-Kantian exponents of liberal political theory. Whereas neo-Kantians such as John Rawls aspire to construct a liberal political theory that does not depend upon controversial claims to knowledge of the nature of things, Locke presents the state of nature as a summary of the conception of nature upon which political philosophy is properly grounded. The state of nature represents, as Hobbes puts it, “the natural condition of mankind,” revealing human nature in its politically relevant essentials. Locke’s account resembles that of Hobbes in at least one other crucial respect as well. Notwithstanding the ambiguities of his presentation (e.g., 11.19), Locke ultimately agrees with Hobbes that in the state of nature, war is inevitable. The “Inconveniences”of that state “must certainly be Great, where Men may be Judges in their own Case” (13; 21). Putting the matter more directly in the Essay Concerning Human Understanding, Locke declares that “Robberies,Murders, Rapes, are the Sports of Men set at Liberty from Punishment and Censure” (ECHU 1.3.9). As the natural condition is “full of fears and continual dangers,”with property “very unsafe, very unsecure,” men are “quickly driven” from that condition into “Society” (TT 11.13, 123, 127). This argument underlies Locke’s contention that the natural condition is nonpolitical or, conversely, that political society must be understood primarily as a conventional or artificial, not natural, association. Primarily and naturally, human beings form societies and subject themselves to governmental authorities not by choice,

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strictly conceived, but rather by necessity (77, 128). We are characteristically “driven” or forced-by some powerful, natural desires but against other very powerful natural desires-thus to subject ourselves. By pointing to the power of our antisocial, antipolitical desires, Locke’s definition of the state of nature as a nonpolitical condition already carries a strong suggestion of its problematic character. Human beings by nature are not generally inclined to submit to civil government, or political authority proper. In fact, in important respects, our nature inclines us to evade or resist it. Despite Locke’s claim, it is not simply true that we are “quickly driven” from the state of nature. That state persists “where-ever any two Men are, who have no standing Rule, and common Judge” to settle their controversies (11.91, emphasis added; 87-94). Not all judges are common judge^,^ just as not all government is civil government. Political power, which is by definition legitimate (consisting primarily of “a Right of making Laws” [11.3]), is only one form of governmentalpower, which may or may not be legitimate.*So the state of nature persists where there is a partial but no common judge. It includes not only conditions of anarchy pure and simple but also the condition of those subject to illegitimate governments. As we will see, Locke proceeds to show that this is the condition of most human societies throughout most of human history. The “noise of War . . . makes so great a part of the History of Mankind” that many “reckon Conquest as one of the [rightful] Originals of Government” (11.175). Although the state of nature may be in many respects an “ill,” aversive condition, in Locke’s account, its very naturahessattested by its persistence throughout human history-implies the existence of powerful human inclinations to remain in or return to that condition. In the Second Treatise, Locke specifies the forces or necessities that disturb the state of nature and thus move us to escape it, or more precisely, to submit ourselves quickly to governmental authority. H e refers to these forces as the partiality and passion inherent in human nature and the %orruption, and vitiousness of degenerate Men” (11.13,125,128). A brief consideration of Locke’s suggestions, in the Second Treatise, concerning the problem of human passions leads us to a consideration of the deeper problem of human partiality, or partisanship, which he elaborates more fully in other works. Primary Passions and Natural Divisions In the Second Treatise, the problem of the state of nature appears to be rooted in primary human passions. Although he provides no detailed,

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systematic discussion of these dangerous natural propensities, Locke makes a more definite suggestion concerning the root of the problem in the vitally important chapter “Of Property.” As he describes in general terms the early humans’ response to their condition, he includes a significant qualification: “Men, at first,for the most part” contented themselves with the offerings of unimproved nature” (11.45; emphasis added). Living in a natural material condition of penury, most are yet unmoved to external action. But at least a few are discontented and desire more. In some human beings, from the earliest period onward, operates a deep and dangerous desire to overcome the natural penury by expanding the realm of one’s own freedom and power. In this way, Locke’s account suggests that the penury of the natural condition stimulates, in at least a few men, the development of specifically mental, antisocial desires. In the Second Treatise, this “desire of having more than Men needed,” manifesting itself as an “amorsceleratus habendi,” appears to represent, from the beginning, the main engine of human contentiousness (37, 111; cf. 92, 115; STCE 103-5). One can say that the natural self is motivated primarily by h ~ n g e raccording ,~ to Locke, provided that one considers the potentially vast expanse of hungers that may develop out of the primordial one. In a manner recalling Machiavelli’s distinction between the two basic “humors” found in all cities,l0 Locke’s account of the root of injustice suggests an aboriginal class division between a relatively timid, reactive majority, more or less content to submit to the force of natural necessity, and a smaller number who seek to overcome it. The characteristic dangers of the natural state proceed from the actions of a few truly criminal, “degenerate Men” (11.128; also 10, ll, 16) or from the nervous desire for security that the degenerate tend to raise in others. The fact that the natural state raises in us a common, active or reactive, “apt[ness] to grasp at Power,” such that “the greater part” therein are “no strict Observers of Equity and Justice,” suffices to establish its general dangerousness (143,123). Partisanship and the Diseases of the Mind

To provide a more adequate summary account of Locke’s understanding

of the natural, psychological roots of human lawlessness and contentiousness, it is necessary to move beyond the relatively simple antagonisms generated by this Machiavellian or Hobbesian dialectic of pride and fear. As a more thorough examination of evidence within and outside the Second Treatise shows, at a deeper level the problem of antisocial motivations also becomes a problem of knowledge or reason. To grasp the deeper roots of

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the problem of the state of nature in Locke, it is necessary to consider the relations between these egoistic natural passions and the more specifically mental disorders that so greatly disturb human societies. The appearance of specifically tyrannical desires, with the nervous concern for security that they engender, represents for Locke only a particular manifestation of the development of a general class of mental disorders in response to the natural condition of penury. The crucial point is that, while it stimulates heightened levels of mental activity, the experience of natural penury in itself does not necessarily raise the level of rationalactivity. Whereas the exercise of the power of reason enables us to discover the moral laws to which we are properly subject, the operation of other mental powers often serves to obscure those laws. In Locke’s account of human development, these other mental powers-above all, the imagination-appear earlier and hold greater spontaneous power than does reason in determining human responses to the natural condition. Although the power of reason proper marks the ultimate distinction, the earliest and often the most visible distinction between human beings and the lower animals appears in the operation of the imagination or “fancy.”More specifically, the power of abstraction “puts a perfect Distinction betwixt Man and Brutes”and makes us uniquely capable of science; but this same power makes us uniquely prone to fantasy and even to madness, to imaginative distortions of reality (ECHU 2.11.10-13; 2.33.1-4, 9).11 In this light, Locke’s exaggerated distinction between natural and fanciful desires (e.g., ECHU 2.21.45; STCE 106) appears intended to underline the dangerousness of the latter. An acute sensitivity to the human propensity for willfulness, fantasy, or “busy-mindedness”underlies his teaching with respect to the ills of our natural condition in the Two Treatises and throughout his work. From the beginning, Locke finds the boundlessly, errantly productive human imagination (ECHU 2.1.2,16) at work in many of the mental pathologies that constantly obstruct, threaten, or subvert the cause of civil government. “[’Tis] Phansye,”he observes in a 1659 letter, that “is the great commander of the world,” that “rules us all under the title of reason,” acting as “the great guide both of the wise and the fooleish” (CJL #Sl). This assessment of the destructive power of the imagination sheds additional light on the Second Treatise‘s references to the partial as well as passionate character of human nature (13,20, 125). Partiality, in Locke’s account, signifies more than our commonly observed propensity to selflove. To see this, one must bear in mind the significant degree of flexibility that Locke builds into his basic definition of the self as “that conscious

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thinking Thing,” which is “capable of Happiness or Misery, and so is concern’d for it se$ asfar as that consciousness extends” (ECHU 2.27.17;emphasis partially added). Self-concerned by nature, human beings are yet capable of imaginatively extending the sphere of their self-concern well beyond their individual bodies and persons. Locke’s references to partiality in the Second Treatise signify generally an excessive attachment to one’s own in a broad, inclusive sense-to one’s own family, tribe, nation, country, or sect, and, above all, to one’s own opinions. In this way, they point toward the Essay’s account of the mental disease of partisanship.The essential feature and danger of partisanship, as Locke conceives of it, lies in a resistance to rational appeal. “[Wlhat one of a hundred,” he demands, “of the zealous bigots in all parties ever examined the tenets he is so stiff in, or ever thought it his business or duty so to do?” (CU 34).The “greatest part of the Partisans of most of the Sects in the World . . . are resolved to stick to a Party, that Education or Interest has engaged them in; and there, like the common Soldiers of an Army, shew their Courage and Warmth, as their Leaders direct, without ever examining, or so much as knowing the Cause they contend for” (ECHU 4.20.18). Locke observes that in varying degrees, the disease of partisanship afflicts the vast majority of human minds. This comes as little surprise, given his understanding of the laborious character of reasoning and the natural or reflexive inclination of most people to alleviate the natural penury with a minimal expenditure of labor. As with material property, it is far easier to acquire one’s opinions by inheritance than by industry. At least in significant part, however, the propensity toward partisan dogmatism reflects a specifically doctrinal, foundational desire. It is “the Nature of Mankind, and the Constitution of Humane Affairs: Wherein most Men cannot. . . be at quiet in their Minds, without some Foundation or Principles t o rest their Thoughts on” (ECHU 1.3.24;CU6,26).12 So powerful is our desire for doctrines or grounding principles, “how remote soever from Reason,” that it is even capable of overriding the individual’s desire for self-preservation. “Men even of good Understanding in other matters, will sooner part with their Lives, and whatever is dearest to them, than suffer themselves to doubt, or others to question, the truth of them” (1.3.21; STCE 146;CU34,41;LNfol. 44).As the human mind often eagerly and uncritically assumes communal identifications to satisfy a desire for esteem or belonging (ECHU2.28.12; STCE 56,67),so, too, it grasps at theological or ideological principles to gain the security and the pride of an ordered meaning.

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Still further, Locke sees in partisan afffiations a collaboration between variations of the familiar passions of pride and fear. Among the leaders of partisan movements in particular, love or respect for the truth is corrupted by a lust for power. The errors of the “Schoolmen and Metaphysicians,” for instance, represent no mere inadvertencies, but rather “wilfilFaults and Neglect? (3.10.1) aimed at enhancing the “Glory and Esteem,” along with the “Authority and Dominion’’ of their authors (3.10.8,9).For it is no “smallpower it gives one Man over another, to have the Authority to be the Dictator of Principles, and Teacher of unquestionable Truths” (1.4.24). This opportunistic ambition on the part of the few leaders collaborates with the fear, passivity, and neediness of their numerous followers. Taken together, human beings’ native mental sloth and our strong desire for corporeal and psychological security engender in many of us a dangerous errancy and precipitancy in submitting ourselves to one or another form of social authority. Viewed in the light of this argument, the Second Treatise appears to present merely the surface of a deep analysis of the natural weakness of human reason. So far as he identifies the law of nature with the law of reason or with reason itself (11.6,10,11,16,172, 18l), Locke’s account of the state of nature in the Second Treatise already renders questionable,to put it mildly, the naturalness of moral rationality. Retracting his introductory assurance that the law of nature is naturally inscribed in human hearts, Locke identifies the primary defect of the natural state as the absence of “an atablishil, settled, known Law” (11.12%see 13,123-27). But the fuller import of this absence appears more clearly in other works, in Locke’s vivid illustrations of the extreme diversity among human societies with respect to the moral law. Relaying the reports of “authors worthy of confidence that entire nations have been, on their own admission, pirates and brigands” (LN fols. 70-71), Locke seems to take a certain relish in deploying the lurid evidence gathered from his extensive exploration of the travel literature of his day to contest the traditional opinion that the law of nature is manifest in moral sentiments and practices common to humankind.13 “Have there not been whole Nations,” he asks rhetorically in the Essay, “and those of the most civilized People,” among whom such practices as exposure, parricide, infanticide, and cannibalism are widespread and publicly approved (1.3.9ff.; cf. LN fols. 66-76; TT I.56-59)? As entire nations engage in them approvingly, such grisly practices are not assignable merely to the deviancy of a few antisocial individuals. More important, such opinions and

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practices are not symptoms of the rebellious depravity of the fallen, nor are e n e ~are ~ .actions ~~~~ they expressions of a natural human ‘ ‘ t r a n ~ g r e ~ ~ i ~They presumed by their agents to be right, taken in conformity with a communal moral code (1.3.13). Locke’s comment in the First Treatise on Garcilasso de la Vega’s account of cannibalism in Peru is worth quoting at length: Thus far can the busie mind of Man carry him to a Brutality below the level of Beasts, when he quits his reason, which places him almost equal to Angels. Nor can it be otherwise in a Creature, whose thoughts are more than the Sands, and wider than the Ocean, where fancy and passion must needs run him into strange courses, if reason, which is his only Star and compass, be not that he steers by. The imagination is always restless and suggests variety of thoughts, and the will, reason being laid aside, is ready for every extravagant project; and in this State, he that goes farthest out of the way, is thought fittest to lead, and is sure of most followers. (58)

This, for Locke, summarizes the natural mental condition of humankind at its extreme. As a state of “perfect Freedom,” the state of nature harbors a constant danger of degenerating into a condition of complete mental license, in which the mind’s power to create alternative, fantasy worlds operates without significant rational guidance or regulation. The surpassingly important historical constant among human beings is the weakness of reason, manifest in our common susceptibility to the most extravagant, grotesque mental and moral disorders. This fact, above all, must guide our reflections as we endeavor to constitute and preserve political societies.

THE FOUNDING OF CIVIL SOCIETY This account of the state of nature reveals a greater historical realism than critics commonly find in Locke’s political thought, but it also generates a seemingly formidable challenge. It reveals Locke’s realism, so far as it allows him to acknowledge and explain the difficulties human individuals and societies experience in discovering and assenting to the rational principles of government. But it generates a challenge to the truth or universality of Locke’s account of the principles of civil government. As one commentator gently puts it, so forcefully does Locke emphasize “the variability of moral

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and political ideas” that he brings us to “wonder how the agreement necessary to political He can ever be ~ecured.”’~ More pointedly, one might wonder, in the spirit of Locke’s o m antagonist Sir Robert F h e r , whether this account of our natural condition leaves Locke in the position of claiming that the proper remedy for the ills of that condition lies in a form of government for which we are naturally unfit. If rights, in Locke’s conception, are the properties of rational beings, how do Locke’s claims of natural human rights cohere with his account of the natural weakness of human reason? To sketch the proper Lockean response to this challenge requires, first, a determination of the nature and ground of rights in Locke’s conception, and second, a consideration of Locke’s treatment of the problem of societal and political foundings. Notwithstanding his suggestions of their grounding in the passion of self-preservation (e.g., I.86,88), Locke holds that rights in full are distinctive properties of rational beings. “The Freedom . . . of Man and Liberty of acting according to his own Will, is grounded on his having Reason” (11.63). This does not mean, of course, that our claims to freedom and rights depend upon our possession of a fully philosophic understanding of the law of nature. It means, more inclusively, that freedom is a property of personhood. Locke explains in the Essay, “is a Forensick Term appropriating Actions and their Merit; and so belongs only to intelligent Agents capable of a Law, and happiness and Misery” (2.27.26). To be a person is to be a responsible agent, a self-owning being capable of rational choice and self-government. Personhood in this sense is the essential condition of human freedom, rights, and property (TTII.27,44, 87, 123). Despite its inclusiveness, Locke’s insistence on rational personhood as prerequisite to freedom is in important respects a restrictive condition. Most obviously,it excludes children or minors from the class of full rightsbearers. We are “bornFree, as we are born Rational; not that we have actually the exercise of either.” A “State of Maturity,, is the condition of our entitlement to full rights and liberties under law. This explains “how natural Freedom and su&jection t o Parents may consist together.” The requisite state of maturity comes with “Age and Education,” and the defining purpose of parental power is educational (11.61, 59, 58). In Some Thoughts ConcerningEducation, Locke declares that “what every one is taken with” is also the proper, ultimate object of education: “A Mind Free, and Master of it self, and all its Actions” (66).

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As Locke more quietly indicates, however, the requisite of rational personhood excludes more than children from the class of full rightsbearers. In conjunction with the Essay’s discussion of the common human susceptibility to madness of one form or another, Locke’s qualification in the Second Treatise may apply quite broadly. “‘Madmen, whichfor the present cannot possibly have the use of right Reason t o guide themselves,”’ require some form of parental or nonconsensual government (11.60, quoting Richard Hooker). However that may be, the discussion in the chapter “Of Paternal Power” suggests that such power applies properly not only to children in the strict sense but also to the childhood of the species. True, Locke maintains that “in the first ages” the exercise of monarchic authority by fathers proceeds with their (adult) children’s consent. But the nature and significance of this “easie, and almost natural . . .tacit, and scarce avoidable consent” remain most unclear among people who umade no distinction betwixt Minority, and full Age” and who, even as (chronological) adults, had “no desire to be out of their Pupilage” (75). Ifwe grant any credence to Locke’s claim that the power exercised by such paternal monarchs-as well as that of the priestly monarchs to whom he lightly alludes in the same discussion (76)-rests somehow on the agreement of the governed, his account suggests, at best, very imperfectly developed capacities for consent and forms of political power in early societies. At minimum, one must infer that among early human beings, even for much of human history, rights in general were akin to material property rights, in that they were very imperfectly developed. Whereas one gains some, imperfect right to material property by merely gathering, one gains a perfect right only when one’s labor is improved by “Invention and Arts” (44). As with material wealth, so with human reason and rights: nature provides but “the materials of Plenty” (41),leaving human labor responsible for cultivating these materials. One holds some presumptive claim-for prudential reasons, even a very strong claim-to rights by virtue of one’s potential personhood. But one’s property in oneself and in one’s rights is fully perfected, and therefore can be fully effectual, only when one’s moral reason is improved by education. Locke’s tacit acknowledgment of the naturally imperfect status of human rights, following from his more open acknowledgment of the natural weakness of human reason, highlights the problem of founding in his political thought. The state of nature or natural human condition, as Locke conceives of it, presents far more than merely a structural problem. The hndamental task is not simply to persuade presumptively rational actors

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to look beyond their narrow and short-term interests and adopt a system of obligations consistent with their larger, longer-term interests. It is instead somehow to cultivate the capacity for rational agency in beings who are primarily subject to the rule of passion and imagination. The implication is that Locke must acknowledge,however quietly, a broader scope for parental power than political liberals may comfortably grant. So long as human societies ignore, deny, or resist the principles of rational selfgovernment, such power will be needed to govern all the members of societies, adults and children alike. In the early, extended period of human history when “Government was almost all Prerogatiwe,” rulers tended to serve, at best, as “nursing fathers” providing sustenance and protection for their subjects (11.162,110,75). After protection, however, what was most urgently needed and rarely supplied was education. To prepare people for the proper constitution of their government, what was needed was the appearance in the state of nature of an original founder-a parental influence in the grandest incarnation, who forms a society or commonwealth by educating people in the principles of human freedom, property, and rights, and, consequently, in the principles of the social compact and civil government.16 Although Locke provides relatively little direct discussion of the character and hnction of an original, societal founder, instead emphasizing the formation of societies by the members themselves, he does not ignore the more distinctive contributions of the founders proper.]’ H e hints at the activities of founder-figures at various points in the Second Treatise. As noted above, by maintaining that “Want Ofa common Judge with Authority, puts all Men in a State of Nature” (11.19), Locke indicates that the rule of a partial judge, exercising arbitrary power, represents also a form of the state of nature. But his phrasing suggests also the rarer possibility of the presence of a genuinely common judge without authority, a ruler working to promote the public good without the rational consent of the governed. More definitely, Locke alludes to the formative, pedagogical role of wisdom in constituting and governing political societies, in his striking reference to the “wise and godlike” prince, the master of the “great art of government,” who establishes laws to secure “protection and encouragement to the honest industry of Mankind against the oppression of power and narrownesse of Party” (11.42; cf. 165-66). Such references call to mind, to later readers, the godlike legislator whom Rousseau invokes to constitute a people capable of genuine

self-government.18

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In a more indirect relation, these fleeting glimpses at a wise, godlike original founder appear to reveal the office of Locke himself, who surely places himself among an elite few “Men”who, responding to the abuses of unrestrained rulers, “found it necessary to examine more carefklly the Original and Rights of Government” (11.111). It is, after all, Locke who educates the legislators in the Two Treatises of Government. But Locke’s ambitions as founder extend far beyond the framing of governmental constitutions. Alongside or anterior to the constituting of governments, Locke proposes a comprehensive redesign of the opinion-forming and character-forming institutions of civil society-the families, schools, and churches-and thereby seeks to effect a comprehensive moral reformation to prepare human societies for the rights and responsibilities of selfgovernment. In Some Thoughts Concerning Education, Locke proposes to transform the education of children with a view toward cultivating in them such liberal virtues as industry, civility, responsibility, and rational self-possession. In the Second Treatise itself, he proposes to reconstitute marriage and the family, in particular replacing paternal power, with its monarchic, authoritarian implications, with parental power, a form of power divided, limited, and wielded by fundamentally equal partners in a contractual, consensual marriage. In the Essay Concerning Human Understanding, he proposes (following Bacon) to reform the higher learning or science, to the ends of overcoming, or diverting our attention from, discomposing natural ills and redirecting human ambitions toward the sorts of improvements that make for prosperous, strong, and free states. And in his Letter Concerning Toleration and his essay On the Reasonableness of Christianity, he proposes a new interpretation of his (and Western) society’s dominant religion, seeking to persuade its believers that the just God whom they worship is a liberal God, who rules by clear, published laws, refrains from punishing arbitrarily, respects human freedom and rationality, and perhaps even recognizes alternative paths to ~alvati0n.l~ Yet, in view of Locke’s assessment of the depth and naturalness of human irrationality, one might expect the character and actions of founders to play a more prominent part in his discussion of the social compact. Given his view of the recurrent character of our natural irrationality, one might further expect Locke to call for periodic refounding or recurrences to first principles.20 But just as Locke consistently and emphatically rejects the principle of natural rulership or the conflation of parental and political power, so, for similar, equally solid liberal reasons, he provides only a muted, indirect,

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truncated discussion of societal and political foundings.To prepare people for their ultimate independence from all nonconsensual human authorities, it is obviously unwise to emphasize their natural dependence on a few possessors of superior, ruling wisdom. However necessary and useful, “the reigns of good Princes have been always most dangerous to the Liberties of their People’’ (11.166). Even as he suggests to princes that, properly considered, their interest in becoming “too hard for [their] neighbours” would move them to promote the liberty and industry of their subjects, Locke warns subjects that princes’ interests are not sufficient in themselves to protect them from “the Violence and Oppression of [an] Absolute Ruler.” In time, rulers unrestrained by law, “made licentious by Impunity” and flattery, inevitably develop “distinct and separate interests from their People,” so that only a unegligent,and unforeseeing” people would entrust themselves generally to the wisdom of such rulers (42, 93, 111, 94). For this reason, it might seem preferable that the preparatory, pedagogical work of original founders be done by indirect rulers-by philosophic teachers such as Locke himself. Yet it is hardly less dangerous to emphasize people’s dependence, for the formation of their moral and political culture, on philosophic or purportedly philosophic authorities. Epitomizing the Essq’s extended assault on the pernicious influence of intellectual and spiritual elites, Locke remarks in the Second Treatise on the likelihood that “Learning and Religion shall be found out to justifie all” the injuries that absolute rulers wish to inflict upon their subjects (92). The coincidence of philosophic wisdom and-at least nonconsensual-governmental authority can never be other than accidental.To propagate the hope for it is to maximize the likelihood of enthroning its opposite. In short, Locke’s account of the state of nature implies the extreme difficulty of the problem of founding and of teaching peoples about founding. The ills of that state appear to be most perilous during the process in which societies and governments are formed to escape it. Hence, at least until the requisite preparatory education has taken root and perhaps also thereafter, it is unsafe to provide a hlly candid discussion of social and political foundings and the role that superior wisdom plays in them. The true, proper founder embodies an exceedingly rare combination of extraordinary wisdom, extraordinary audacity, and extraordinary modesty or self-restraint, even to the point of self-effacement.21 One could say that the work of the Lockean founder is done well when it is done invisibly-or done, as a beneficent inversion of a Machiavellian execution,22so as to direct responsibility for it toward others, the people,

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who are also its beneficiaries. A prudent discussion of foundings, on Locke’s principles, would place preponderant emphasis on those portions of foundings for which a people, already prepared for self-government, may claim substantial responsibility. Some of the most prominent American Founders display aspects of this Lockean prudence, or the need for it, in their discussions of their own founding. In The Federalist, Publius consigns to “ancient history” the role of the “primitive founder,” conceives of foundings in relatively limited terms as the “framing” of governments, and endorses the practice of delegating that task to “an assembly of men” rather than to “some individual citizen of pre-eminent wisdom and approved integrity.”23In a similar spirit, however, a Lockean observer might express some disapproval of the openness with which the American Founders fashion themselves as “founding fathers” and thereby inject a notable measure of parental authority into the American constitutional order. In this spirit, a Lockean discussion of the American Founding might go so far as to maintain a critical distance even from plural, popularly representative founders of preceding generations, as does the elder Thomas Jefferson in advising his contemporaries neither to regard their constitutions with “sanctimonious reverence” nor to ascribe to prior framers “a wisdom more than human.”Just as there is no natural right of the wise or virtuous to rule, Locke insists, so one cannot, “by any Compact whatsoever, bind his Children or Posterity’’ (11.116; also 54,118). But given Locke’s quiet affirmation of the need for a rare sort of wisdom in social and political foundings, it is unlikely that he would follow Jefferson in proposing regularized constitutional reframing~.~~ However necessary such founding wisdom may be, especially in the original formation of political societies, the rareness of the requisite wisdom along with the general “frailty”of human nature-corruptible by impunity and flattery and thus “apt to grasp at Power” (II.l43)-compels Locke to conclude that there is no truly safe repository of founding or legislative authority save that which is authorized and held accountable by a rational and spirited populace. The Lockean constitutional framer, given the good fortune of legislating for such a society, must legislate with a view toward minimizing its members’ dependence on parental authorities and thus minimizing its need for periodic, recurrent refoundings. His success must depend in substantialpart upon the durability of Locke’s principles in informing the largely private, character-forming institutions of civil society. But the public institutions that he frames can contribute importantly if unobtrusively to these ends as well. Although the Lockean constitutional

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government is not designed to be simply “a machine that would go of itsell;”225obviating any further need for virtuous citizens, rulers, or refounders, its principles and institutions themselves appear designed to have important, indirect formative effects on those who govern themselves through them. The following two sections examine how the Lockean social compact, in its core principles and in the governmental institutions it inspires, continues and perpetuates the pedagogical work of the Lockean founder, reinforcing the opinions, habits, and sentiments that constitute a people’s capacity for self-government.

THE SOCIAL COMPACT: TERMS OF ASSOCIATION In their familiar essentials, the terms of the social compact, as Locke conceives of it, are these. The compact binds “any number of Men,” and its parties include all and only those individuals who wish to form a society (11.89, 95-96, 99). The compact represents only a “bare,” preliminary agreement “to unite into one Political Society” or commonwealth (99). Strictly conceived, it does not yet constitute a government; the parties instead agree (absent any express provision to the contrary) “to submit to the determination of the majority” (97; see also 95-98, 132; 99). The parties agree to surrender their natural rights and powers to such a degree, and to authorize the society or its legislative power to make such laws, “as the publick good of the Society shall require” (89, 99). At least in predominant part, the securing of this public good corresponds to the “great and chief e n d . . . of Mens uniting into Commonwealths, and putting themselves under Government,” namely, “thePreservation of their Property,” that is, of “their Lives, Liberties, and Estates” (124, 123). Most broadly and fundamentally,the social compact as Locke conceives of it presupposes and reinforces the principle of personal self-ownership. Political power, which originates “onlyffomCompact and Agreement,” is possible only “where Men have Propeg.,” in persons as well as goods (11.172-74; cf. 138).Once again, to have a property in oneself is to be capable of rational (not merely willful) self-disposal. To enter properly, rationally, into a compact is to surrender rights or to assume obligations only conditionally.This means that a rational person forms a compact only with a view toward improving his or her condition (164) and reserves (as we shall see) an ultimate right to judge whether the compact’s terms are adequately met. An insistence on compact thus conceived as the basis of political obligation is indispensable for

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the preservation of human freedom and even human dignity. Appealing to their spiritedness or sense of honor, Locke challenges his readers to feel as well as see the need for this insistence. A people who submitted voluntarily and unconditionally to a government, were it possible, would show itself to be “not a society of Rational Creatures entered into a Community for their mutual good”but rather a “Herd of inferior Creatures”-at bottom, of slaves (163,91). A similar design appears in Locke’s insistence, again pursuant to his conception of a conditionally obligatory compact, that political power must be understood as a fiduciary power or trust (11.22, 149, 156, 171, 202,222,231,240). Whereas governments may and must exercise powers requisite for preserving people’s property, those powers are and remain ultimately the property of the people themselves. Government is at once a means to the preservation of members’ property and a vitally important part of that property. And the experience of having property holds political, not merely private or economic, significance in that the experience of actually having something to defend tends to awaken a sense of vigilant defensiveness. Hence, the concrete practice of political consent, like the ownership of concrete material property, tends to solidify and expand the individual and popular senses of self-ownership. In this way, the institutionalizing of the principle of compact carries an important formative effect.26

The Doctrine of Unalienable Rights

A similar but more complex formative effect proceeds from a closely re-

lated element of Locke’s social compact theory, the doctrine of unalienable natural rights. “For no Man, or Society of Men, having a Power to deliver up their Preservation, or consequently the means of it, to the Absolute Will and arbitrary Dominion of another. . . . they will always have a right to preserve what they have not a Power to part with” (11.149; also 137, 168, 172). Yet, although Locke’s fundamental commitment to the doctrine of unalienable rights seems sufficiently clear, his presentation of the specifics of that doctrine is subtle and complex. The subtleties and complexities in his presentation reflect his judgment that the doctrine of unalienable rights, indispensable to rational constitutionalism, is yet capable of engendering extremism. If it is to support, not damage, the cause of just government-of popular preservation, freedom, and happinessit must be interpreted and practiced in a spirit of moderation. While the

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principles of Locke’s social compact are designed to cultivate a certain spiritedness in defense of our property in ourselves and our rights, they are designed also to promote the sound judgment and self-restraint required to maintain our expressions of spiritedness in their proper defensive posture. Locke sees a clear distinction between natural rights and freedom and the rights and freedoms proper to membership in political society. The “Freedom$Nature is to be under no other restraint but the Law of Nature” (11.22). Everyone in the state of nature has the “Power,”or right, “to use such means for the preserving of his own Property, as he thinks good, and Nature allows him” (171; cf 87, 94). Notwithstanding his qualification concerning restraints imposed by the natural law, Locke’s acknowledgment (124) of the absence of a settled law in the state of nature (along with the other evidence adduced above) makes it clear that these natural rights are effectively unlimited. In effect, Locke acknowledges an absolute natural right to do whatever one judges necessary to protect one’s property, broadly u n d e r ~ t o o dBut . ~ ~ no such right can survive the transition from the state of nature to political society. Members of political society cannot retain their natural right to resist any perceived danger to or encroachment upon their or others’ lives, liberties, and possessions; this right must be surrendered “SO far forth as the preservation of [themselves], and the rest of that Society, shall require” (129). What they retain, however, is principally the right to judge whether the authority to which they have subjected themselves is exercising or seeking absolute, arbitrary dominion over their lives, liberties, and properties. By “a law antecedent and paramount to all positive Laws,” men reserve “that ultimate Determination to themselves, which belongs to all Mankind, where there lies no Appeal on Earth, viz. to judge whether they have just Cause to make their Appeal to Heaven. And this Judgment they cannot part with” (169; also 91)>* Locke’s accounts of how we are to make these judgments with respect to encroachments on particular rights make clearer the modifications that natural rights must undergo as they are effectuated in political society. The most striking illustration of the modification of natural rights in political society concerns the right to life or personal preservation. However expansive this right in the state of nature, Locke pointedly declares that “being now in a new state,” the member of civil society “engages his natural force , . . to assist the Executive Power of the Society, as the Law thereof shall require.” The parties to a Lockean compact delegate to their society and government the right “to employ all the force of all the Mem-

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bers when there shall be need” (11.130,88; also 89). At the extreme reaches of the requisite “Martial Discipline,”this delegation entails submission to a power that is absolute and even-Locke suggests in one instance-approaches arbitrariness.“For the Preservation of the Army, and in it of the whole Commonwealth, requires an absolute Obedience to the Command of every Superiour Officer, and it is justly Death to disobey or dispute the most dangerous or unreasonable of them” (139). Were we to take this statement literally as his last word on the subject, it would be difficult to see how Locke could consistently maintain his affirmations of unalienable rights. But a significant qualification appears in his statement of “thefirst andfindamental natural Law” of commonwealths, which commands “tbe preservation oftbe Society, and (as far as will consist with the publick good) of every person in it” (134). Because the fundamental natural law of society requires society’s preservation, the individual soldier or inductee may not judge the legitimacy of government on the basis of whether a specific command or policy may endanger or even sacrifice his life. But because the same law commands the preservation of every individual member, so far as is consistent with the public good agreed upon by members’ rational consent, the individual may judge governmental legitimacy on the basis of whether it arbitrarily disposes of members’ lives or demands a gratuitous or unjust loss or risk of life. While consent to society and its own natural law requires a partial surrender and moderation of individuals’ natural right to self-preservation, it leaves a substantial natural right intact.29 Locke’s account of the societal modification of the natural right to liberty is in a similar spirit. Because even in the state of nature there is no absolute right of liberty, and because it is contrary to the very existence of government to allow absolute liberty (ECHU4.3.18), members of course cannot judge the legitimacy of their government based on whether it encroaches in any way on their liberty. Rather, they must make this judgment based on whether government abridges or regulates their liberties arbitrarily, or in a manner inconsistent with its fundamental conditions and purposes. In specifying further the proper basis for judging governmental protection of liberty rights, Locke places primary emphasis on formal rather than substantive criteria. In contrast to natural liberty, the “Liberty of Man, in Society, is to be under no other Legislative Power, but that established, by consent” (11.22). Accordingly, it is to be governed by standing laws enacted by members’ legitimate, duly chosen representatives. Subjection to a nonconsensual government, even one that is nontyrannical in its disposition of subjects’lives and possessions, is thus proper cause

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for resistance (141, 197-98,212-17). Likewise, Locke’s objection to unjust enslavement (e.g., 135) seems clearly to imply a governmental obligation to provide basic due-process guarantees against arbitrary imprisonment. Moreover, from Locke’s insistence on rational consent and representative government, one might reasonably infer a demand for the protection of basic substantive liberties centered on the exercise of deliberative rationality, such as, above all, liberties of speech and p u b l i ~ a t i o n . ~ ~ Finally, our natural property in our own labor and its products also undergoes significant modification without simply disappearing in the context of civil society. Most obviously, as “Governments cannot be supported without great Charge,’’ and as the principle of equal liberties under law requires our noninjurious use of our properties, Locke affirms that our property is rightly subject, by rational consent, to taxation and regulation as we become members of civil society (140,l). Further, from his reference to a prerogative power “to pull down an innocent Man’s House to stop the Fire, when the next to it is burning’’ (159) one might reasonably infer Locke’s affirmation of a governmental power of eminent domain to override particular property rights when a larger public good requires it. In general, Locke’s tolerance of governmental activism with respect to material property might seem potentially quite broad, in view of his declaration that the social compact requires a submission of possessions as well as of persons: every Man, when he, at first, incorporates himself into any commonwealth, h e . . .annexed also, and submits to the Community those Possessions, which he has, or shall acquire. . . . For it would be a direct Contradiction, for any one, to enter into Society with others for the securing and regulating of Property: And yet to suppose his Land . . . should be exempt from the jurisdiction of that Government. (120)

Here again, however, governmental authority has limits. Members reserve a right to judge governmental violations, in the form of arbitrariness in its disposal over the products of members’ labors or of violence to their acquisitive faculties themselves. The intelligible, if somewhat imprecise, criterion of these judgments concerns whether government acts “designedly to impoverish the Subjects” (135; also 201). Popular Prudence and the Right of Resistance

Just as Locke teaches the importance of moderation for understanding the primary unalienable rights of life, liberty, and property, so he teaches

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a corresponding lesson in moderation in his account of the unalienable rights doctrine’s most dramatic corollary, the right of resistance to illegitimate government. Locke acknowledges that his affirmation of natural, unalienable rights to judge and resist arbitrary power may appear to some readers implicitly anarchic (11.203-10,223-24). H e responds in part with the well-known contention that his doctrine of resistance will constitute “thebest Fence against Rebellion,” disciplining rulers and thus diminishing the need and likelihood of popular resistance (226). Less widely noticed, however, is the fact that Locke issues equally stern warnings to both or all sides of controversies concerning governmental legitimacy. Whoever “appeals to Heaven, must be sure he has Right on his side; and a Right too that is worth the Trouble and Cost of the Appeal” (176). For “this I am sure, whoever, either Ruler or Subject, by force goes about to invade the Rights of either Prince or People, and lays the foundation for overturning the Constitution and Frame of any Just Government, is guilty of the greatest Crime, I think, a Man is capable of” (230; also 218). Although he opines that precipitant popular resistance is generally a lesser danger than popular submissiveness or traditionalism (223), Locke also endeavors to promote further moderation in the understanding and use of his doctrines, in his suggestions concerning how his rules of judgment are to be applied and even who may apply them. Maintaining that a mature, sober tolerance of human imperfections is indispensable to the stability of legitimate government, Locke emphasizes that only an evil or unjust design-not merely momentary, isolated, relatively harmless violations-suffices to determine a judgment of governmental illegitimacy. “The State of War” originates in a declaring, “by Word or Action, not a passionate and hasty, but a sedate settled Design, upon another Mans Life” (16; also 19). A Lockean people, in the act of judging its government’s legitimacy, is expected to exercise a measure of prosecutorial discretion, or perhaps a power to pardon, inherent in its natural executive power. Locke teaches and demands the sort of prudence invoked in the U.S. Declaration of Independence, as it rejects the changing of established governments for “light and transient causes.” According to the Declaration (in language clearly adapted from Locke), people have a right and duty to overturn their governments only “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism.” Likewise for Locke, “if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People . . . ’tis not to be wonder’d, that

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they should then rouze themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which Government was at first erected” (225; cf. 210). Locke’s approving references to popular caution in judging exemplify his insistence on a moderate rationalism. To govern themselves properly by rational consent, Lockean peoples need not master the art of government practiced by the best, most “godlike”princes. Nor should they judge the legitimacy of their governments by means of an inflexibly rationalist, legalistic application of principles of right. The moderate rationalism that Locke recommends, including a tolerance both for the inevitable imperfections of rulers and for the necessary measure of imprecision in practical judgments of this kind, consists instead in the exercise of an accessible mixture of reason and good sense. To preserve their own rights without unreasonably raising their expectations of government, the members of a Lockean commonwealth need possess only “the sence of rational Creatures” (11.230, emphasis supplied; cf. 94,168,225). Presuming such good sense just as he also appears to presume universal adult rationality, Locke declares that it is “as impossible for a Governor, if he really means the good of his People . . . not to make them see andfeel it; as it is for the Father of a Family, not to let his Children see he loves, and takes care of them” (209; emphasis supplied). As suggested above, Locke labors throughout his works to cultivate the reasonable sentiment required for sound popular judgment of governmental legitimacy. A similar moderation appears in a closely related aspect of Locke’s argument, concerning who may properly exercise the right of resistance to illegitimate government. We recall that, strictly speaking, the Lockean social compact forms only a society, which thereupon, by majority decision, entrusts political power to a suitably framed government.The implication is that the judgment of governmental illegitimacy rests primarily with the people or society and only secondarilywith individual members. “ThePeople shall bejzcdge” whether prince or legislature acts contrary to trust (240; cf. 168, 242).31 More significantly, in the guise of merely describing common practice, Locke indicates that the people are to base this judgment on a calculation of their collective self-interest. “For till the mischief be grown general, and the ill designs of the Rulers become visible, or their attempts sensible to the greater part, the People, who are more disposed to suffer, than right themselves by Resistance, are not apt to stir” (230; cf. 168,209). Somewhat ironically, the principle of individual self-ownership serves to strengthen members’ tolerance of isolated or private harms to

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other individuals. However harsh the implication for individual victims, it thereby provides further support for popular prudence. In their critical reluctance to devote themselves to great causes beyond or unconnected to themselves, the rational, self-owning members of a Lockean commonwealth are generally and prudently unwilling to disturb their government in cases wherein the grievances of individuals do not portend more general negligence or wrongdoing. Locke does not go so far as to declare individuals as such bereft of rights to defend themselves against governmental or societal injustice. Other governmental forms than monarchy are capable of tyranny; the “Title of the Offender, and the Number of his Followers make no difference in the Offence” (201,176). So individuals and minorities cannot surrender their rights of judgment and resistance against republics or representative governments-that is, against the societies or majorities that they represent. Not only “the Body of the People” but also any “single Man” has “a liberty to appeal to Heaven” in causes of sufficient moment wherein other appeals are denied or exhausted (168; cf. 208). Subsequent to the formation of society, this right is to be exercised primarily by the people or society in judging governmental legitimacy, but individuals and (hence) minorities reserve their right ultimately to judge societal legitimacy as well. Powers delegated to government “can never revert to the Individuals again, us long as the Society lusts” (243; emphasis supplied). Nonetheless, the individual rights of judgment and resistance differ importantly from the corresponding societal rights. In Locke’s treatment, an obvious difference in their practical effects becomes difficult to distinguish from a difference in the natures and extents of the rights themselves. Although “private Men” have rights to self-defense and reparations against unjust governments and societies, their mere possession of these rights “will not easily ingage them in a Contest, wherein they are sure to perish” against clearly superior numbers and forces (11.208). In practical effect, in the usual cases in which they hold insufficient power to enforce their rights themselves, individuals’ and minorities’ rights to resist illegitimacy reduce to a choice between patient, persistent persuasion of a larger number of members and emigration (see 176, 114-17). Whereas individuals and peoples alike possess rights to resist illegitimacy, the right to revolution strictly conceived-to alter or to abolish and reconstitute government-is effectively a societal right, for Locke, not an individual right.32

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THE SOCIAL COMPACT: THE CONSTITUTION OF GOVERNMENT The implications of the social compact for the constitution of government represent a continuation of Locke’s indirect pedagogical design. At first glance, it might seem that Locke’s social compact carries few if any definite implications concerning the proper constitutional form. “By Common-wealth, I must be understood all along to mean, not a Democracy, or any Form of Government” (133; cf. 96, 132). In fact, however, a closer consideration reveals that the principles of the social compact carry quite definite constitutional implications. For present purposes, it suffices for us to consider the two most important of these implications,with particular attention to their pedagogical or formative effects: representative government and the separation of powers. Representative Government Elaborating more definitely his constitutional principles, Locke affirms that the legislature is to exercise its consensual, fiduciary power as a representative body. In “well order’d Commonwealths . . . the Legislative Power is put into the hands of divers Persons who duly Assembled, have . . . a Power to make Laws, which when they have done, being separated again, they are themselves subject to the Laws they have made” (11.143; cf. 94, 134, 138, 141-42, 154, 157-59, 222). The pedagogical significance of Locke’s principle of representation inheres both in Locke’s understanding of the general principle and in the specific scheme of representation that he envisions in a well-framed government. In part, the pedagogical effect of representation is inseparable from that of the principle of popular consent. Locke holds that representation is the most effective means for institutionalizing the consent that is the indispensable basis of civil government. As we have seen, consent is the condition of civil liberty, the means whereby liberty is preserved in the transition from the state of nature to political society (11.22). It is true that Locke sometimes presents liberty, and therefore consent, as necessary means to the primary end of preservation (e.g., 23). But because the defense of freedom and its associated forms may pose occasional risks to one’s personal security, the right of consent must be affirmed as an independent source of pride or dignity, capable of inspiriting the desire for pre~ervation.~~ In some of the rhetoric of the Two Treatises, one can see

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Locke’s attempt to cultivate passions and sentiments suitable for this purpose.34But this rhetoric requires the support of institutional practice. In a well-ordered commonwealth, the practice of representation gives regular effect to the principled subordination of the fiduciary legislative power to the rightfid power of the people (see 149,143). It thus provides an invigorating semblance of self-government for a populace that is likely to be spontaneously inclined toward submissiveness. It bears emphasis, however, that the practice of representation in Locke’s design constitutes only an indirect form of self-government and therefore supplies only a moderate portion of pride. Just as it is necessary to expand or invigorate the popular desire for self-preservation, so it is necessary to moderate or civilize its counterpart, the desire to rule. The need to moderate the desire to rule comprehends even the desire for communal sef-rule. The practice of representation reflects and fosters a desire to deputize someone rather than to participate directly in public life. In Locke’s judgment, to achieve our proper measure of self-government, we should not seek to reestablish the opinion, characteristic of classical republicanism, of the surpassing dignity of political activity or public life. As Montesquieu observes, it is a serious error to identify popular liberty with popular power.35Government functions best and most visibly as a means to protect private interests and l i b e r t i e ~The . ~ ~ principle of representation in Locke therefore occupies a stable middle ground between the extremes of elitist authoritarianism and direct, participatory democracy. It is designed at once to cultivate and to moderate a popular vigor in the defense of mainly private rights. It stands among the signal achievements of Lockean liberalism, articulated effectively in The Federalist as well as in the Two Treutises, to persuade modern societies both to desire self-government and to believe themselves self-governing by virtue of their power to elect representatives to govern them. The specific character of representation in Locke’s constitutional design carries similar pedagogical significance. This significance appears not only in the specific qualities that Locke’s scheme is designed to represent but also in important sorts of qualities that Locke’s legislature is designed not to represent. While the legislature and the government as a whole represent the people fiom whom they derive their authority, “the people” as a collectivityis not to be understood as a natural, prepolitical ~ n i o n . ~ ~ fact The of political divisions proceeds from natural necessity-from human corruption and viciousness (11.128; cf. 14)-but the determination of the specific boundaries that divide peoples is largely arbitrary and the boundaries

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themselves historically fluid. Locke states categorically that “Where-ever . . .any number @Men are so united into one Society” as to surrender their natural executive powers, “there and there only is a Political, or Civil Society” (89; emphasis partly supplied; cf. 178). It is not their national or ethnic identity but rather “their LegisZative” that unites the members of a commonwealth?’ “This is the Soul that gives Form, L@, and Unity to the Commonwealth From hence the several Members have their mutual Influence, Sympathy, and Connexion” (212). Moreover, closely related to this abstraction from national or ethnic affiliation is Locke’s rejection of sectarian religious qualification in his scheme of representation. In these respects, his legislative design reflects a classically liberal wariness of the dangers of partisan contentiousness inherent in governmental privileging of subrational and suprarational identifications. Like constitutional government, material property, and even individual persons themselves, a Lockean people is a product of labor and art. Locke’s specific scheme of representation implies that the formation of such a people requires the artful governing and reconciling of natural dispositions that are often opposed to one another. Within the horizon of Locke’s egalitarian constitutional order, based upon the principles of natural human rights and government by consent, a certain narrowed party division between an egalitarian claim and a mixed aristocratic and oligarchic claim to representation reappears. In his brief discussion of the subject in the Second Treatise, Locke suggests initially that legislative representatives are to be apportioned on the bases of population size and wealth (11.157). This implicit mixing or balancing of partisan principles appears to reflect a twofold imperative in the pedagogical cause of promoting rational self-government. In institutionalizing the representation of the numerous and the wealthy, Locke recognizes claims to a share in governing based, respectively, upon the principle of presumptive rationality and the labor theory of property, including property in oneself. In affirming the legitimacy of claims based on sheer population size, Locke affirms the presumptive right of adults to a share in their own governance. And in affirming the legitimacy of claims based on wealth, Locke affirms the claim of productive industry, and by implication the more general claim of effortfd achievement, that wealth signifies. Of course, the possession of wealth, like any other manifestation of worldly success, is an imperfect indicator of effort or virtue. Locke seems to calculate, however, that to honor and protect it through political representation is the nearest means to honoring and protecting the virtue of productive industry-

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virtue in a broadly accessible form, and in a form that is vitally important for the achievement of responsible personhood. In the immediately following paragraph, Locke clarifies the principle that is to reconcile or to uni+, so far as is possible, these potentially antagonistic claims to representation. The true principle of apportionment, grounded in “true reason,” is that “no part of the People however incorporated can pretend to” a right to representation, “but in proportion to the assistance,which it affords to the publick” (11.158).With this clarification, Locke effectively rejects claims of pure, status-based entitlement. As we have seen, although some fundamental rights are proper to human nature, according to Locke, full humanity or personhood itself is to be understood less as a natively given status than as an achievement, the product of ongoing laborious activity.The true principle therefore grounds representation not simply in natural entitlement but in the activities wherein members contribute to the commonwealth‘s well-being and thereby demonstrate their own responsibility. Let us be clear, however, that as the argument of the Second Treatise unfolds, Locke does not renounce the egalitarian principle of presumptive adult rationality that underlies his conception of rights and his insistence upon government based on popular consent. Rather, he refines that premise, so that the presumption of adult rationality guarantees broad, egalitarian popular representation without undermining incentives and protections of productive industry and other meritorious a~hievement.~~ The Separation of Powers

Just as a well-framed government requires a representative legislature, so, too, it requires a division or separation of legislative and executive powers (11.159, 143-44). And although the purpose of that division, like that of representation, is primarily protective-to “oblige [the government] to control itself,” as James Madison puts it40-it, too, holds important pedagogical significance. As the preeminent danger of the state of nature is subjection to an absolute, arbitrary power, it would seem that the great object of civil government must be to eliminate or minimize merely personal, subjective, arbitrary power by subjecting governors and governed to “settled standing Laws,” or “statedRules of Right and Property” (11.137).In well-constituted commonwealths, therefore, the legislative power is the “Supream Power” (149-50; cf. 134-36, 138). Accordingly, to preserve the law’s impartiality

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or generality in formulation and application, Locke insists that the powers to make and to execute laws be located in distinct offices, provided, once again, that the subordination of executive to legislative be clearly understood: the legislative power contains “a right t o direct how the Force of the Commonwealth shall be imploy’d” (143). As Locke’s constitutional design unfolds, however, a certain tension appears in the relation between the principles of the rule of law and the separation of powers. Insisting on the rule of law and legislative supremacy, Locke describes the executive as “Ministerialand subordinate”to the legislative power (11.152,153). H e even suggests that the executive in a properly constituted government41“is visibly subordinate and accountable to’’ the legislative, “and may be at pleasure changed and displaced” (152). O n the other hand, the very principle of the rule of law, confining the legislative to its proper function in making general, impartial rules, requires that the executive possess a considerable degree of operational independence in applying those rules to particular cases. But Locke does not stop at affirming the necessary and limited executive independence inherent in its functions of interpreting and applying positive law. Now proclaiming it the “SupreamExecutor of the Law” and even the “SupreamExecutive Power,” he proceeds to grant the executive the powers to convoke, dismiss, and reapportion the legislature (156-58). Most strikingly, he affirms a potentially much broader executive independence in the prerogative power to look above the legislature and its positive laws-in effect, to interpret and apply natural laws-where the public good requires it. At least under constitutions whereby the executive and legislative are properly separated, executives properly hold the power to act “of their own free choice, where the Law was silent, and sometimes too against the direct Letter of the Law, for the publick good” (159,164). This recognition of prerogative power may represent in part Locke’s prudent or generous attempt to accommodate monarchic along with democratic and oligarchic passions. Coming from so vigorous an antipatriarchalist, Locke’s rare and striking references to “godlike” princes (11.42, 165-66) could hardly fail to appeal to the highest aspirations of his most ambitious readers. With respect to the pedagogy of Locke’s constitution, however, more important even than the attempt to accommodate divergent passions is the attempt to accommodate, to sustain the virtues and to check the vices of, divergent modes of reason. Although he insists on the impersonal, impartial rule of law to remedy the defects of personal reason and thus to protect political life

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against the whims, passions, and partiality of personal rulers, Locke also sees clearly the potential abuses in this remedy, taken to an extreme. As it attempts to combat the enthusiasms born of passion and superstition, reason must remain wary of its own enthusiasms, growing out of the liberal aspiration to govern political life by purely impartial, general laws. In Locke’s example, were it necessary to tear down an innocent man’s house to prevent a next-door fire from spreading, “a strict and rigid observation” of the law would represent a foolish and harmful legalism, contravening the broader public good and the broader spirit of the law protecting personal property (159). Moreover, an overzealous attempt to minimize partial or personal rule by means of a comprehensive system of legislation or bureaucratic regulation would exacerbate the very problem it aims to solve, as such a system of “intricate contrivances”would provide by its very complexity abundant opportunities for arbitrary, partial administration (12). It is to check the enthusiasms of legislative reason, therefore, that Locke allows space for executive discretion or prudence in the exercise of prerogative power. Because “it is impossible to foresee, and so by laws to provide for, all Accidents and Necessities, that may concern the publick; or to make such Laws, as will do no harm, if they are Executed with an inflexible rigour . . . therefore there is a latitude left to the Executive power, to do many things of choice, which the Laws do not prescribe’’ (11.160). The division of legislative and executive powers in Locke’s constitution effects a balance not only of opposing passions but, more important, of science and art, of general and particular modes of reasoning. Locke offers some suggestive observations concerning the relation between these two modes of reasoning in the Essay, in his discussion of the mind’s udiscerning”faculty, the faculty “whereby it perceives two Ideas to be the same, or different” (2.11.1-2). What Locke here calls “judgment,” the mode of reasoning attentive to particularity, distinction, and difference and thus to the limits of generalization, is more properly characteristic of executive power, whereas the mode of reasoning concerned with comparisons, rules, and generalities is more properly characteristic of legislative power. And although Locke considers judgment, or the executive mode, a more refined and difficult mode of reasoning than the legislative mode, he considers each mode incomplete in itself and in need of correction by the other. In the design of a political constitution, a confusion of either part for the whole of political reasoning can create the conditions for a potentially dangerous extremism. Carried to its dogmatic

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extreme, the more distinctive,particularist mode of reasoning degenerates into a rationalization of lawlessness and ultimately into an assertion of sheer irrationalism,characterized by a paradoxical, nihilistic affirmation of particularity, flux,or difference as the exclusive ruling principle of nature. Carried to its own extreme, however, the legislative mode degenerates into a dogmatic will to generalize, to provide for all particular exigencies by means of a conclusive set of general rules, and thus to eliminate any further need for independent With this view of the deeper rationale for Locke’s division of governmental powers, we revisit the problem with which we began. By separating the legislative and executive p0wers,4~the Lockean constitution reinforces the lesson of the state of nature, institutionalizing a reminder of the natural weakness or incompleteness of individual human reason. The power that is held undivided by individuals (including patriarchs and chieftains) in the state of nature must be divided in political society, because the reason of individuals that commonly supposes its wholeness is most often actually partial and self-deceived. The reason that is adequate to govern us, that is capable of impartiallyjudging the claims of the general and the particular or the many and the few or one, emerges more reliably from the interaction between two institutional powers than from the actions of a single individual or body. By virtue of its mutually complementary, mutually correcting interaction between legislative and executive powers and the modes of reasoning that they represent, the Lockean constitutional order once again teaches a moderate rationalism.

NOTES 1. Harry V. Jaffa, A New Birtb $Freedom (Lanham, Md.: Rowman & Littlefield, 2000), 37. 2. Thomas Jefferson to Henry Lee, May 8,1825, in The L$ and Selected Writings $Thomas Jeferson, eds. Adrienne Koch and William Peden (New York Modern Library, 1944), 719. 3. James Madison to Nicholas P. Trist, February 15, 1830, in The Founders’ Constitution, eds. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1986), vol. 1, chap. 7, doc. 28. Available at press-pubs.uchicago. edu/founders/documents/vlch7s28.html [accessed Aug. 6,20011. 4. Citations of Locke’s works will appear in the text, abbreviated as follows. The Correspondence ofJohn Locke (Oxford: Clarendon Press, 1976) will appear as CJL, followed by letter number. A n Essay Concerning Human Understanding will

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appear as ECHU, followed by book, chapter, and paragraph numbers. A Letter Concerning Toleration will appear as LCT, followed by page number from the James T d y edition (Indianapolis: Hackett, 1983). Questions Concerning the Law of Nature will appear as LN, followed by folio numbers; translations are from the edition of Robert Horwitz et al. (Ithaca, N.Y.: Cornell University Press, 1990). Some Thoughts Concerning Education will appear as STCE, followed by paragraph number. Two Treatises of Governmentwill appear as TT, and will be cited by treatise and paragraph numbers. Of the Conduct o f Understanding will appear as CU, followed by page number from the Francis Garforth edition (New York Teachers College Press, 1966). All italicizing indicates Locke’s original emphasis unless otherwise noted. 5. Michael Zuckert, Natural Rights and the New Republicanism (Princeton, N.J.: Princeton University Press, 1994), 221-40, provides the best discussion of the “strangeness”or novelty of this doctrine. 6. See, for example,John Dunn: the state of nature represents “neither a piece of philosophical anthropology nor a piece of conjectural history’’and indeed holds “no transitive empirical content whatsoever” (The Political Thought ofJohn Locke [Cambridge: Cambridge University Press, 19691,103). 7. Robert Faulkner draws attention to the significance of the qualifier in Locke’s references to a “common judge.” See “The First Liberal Democrat: Locke’s Popular Government,” Review of Politics 63, no. 1 (Winter 2001): 15-16. 8. I use the term “government” inclusively here, following Locke’s usage in the earlier part of the Second Treatise. But Locke’s usage of the term is ambiguous or evolves as the work proceeds. In chapter 7, for instance, he uses the term inclusively, so that absolute monarchy is no form of civil government, but it is a form ofgovernment (see 90,92-93; also 99,104). In the two final chapters, however, Locke uses the term to refer only to government in its perfected or legitimate condition, so that tyranny represents not even a degenerate form of government but rather the dissolution of government-no form of government at all. In this later usage, governmental power and political power now appear identical. 9. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 235; Pierre Manent, A n Intellectual History ofLiberalism (Princeton, N.J.: Princeton University Press, 1994), 41. 10. Machiavelli, The Prince: “For in every city these two diverse humors are found . . . that the people desire neither to be commanded nor oppressed by the great, and the great desire to command and oppress the people” (ed. Harvey C. Mansfield, Jr. [Chicago: University of Chicago Press, 19851, chap. 9,39). 11. O n Locke’s view of the human propensity to madness, see especially Thomas Pangle, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988), 179-81, and Uday Singh Mehta, The Anxiety $Freedom (Ithaca, N.Y.: Cornell University Press, 1992), 80-118. 12. Cf. Bacon: “the nature of man doth extremely covet. . . to have somewhat in his understanding fured and immovable, and as a rest and support for the

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mind” (Advancement $Learning, in Works 111.392, quoted in Laurence Lampert,

Niefzsche and Modern Times: A Study of Bacon, Descartes, and Nietzsche [New

Haven: Yale University Press, 19931, 136). 13. O n the absence of moral consensus, see, e.g., ECHU 1.3.9-12, 21-27; 2.28; LN fols. 16-17, 34-35, 62-81. See also Pangle, Spirit $Modern Republicanism, 172-83; Paul Rahe, “John Locke’s Philosophical Partisanship,” Political Science Reviewer 20 (Spring 1991): 33-34; Zuckert, Natural Rights, 187-2 15. 14. Contrast W. M. Spellman, John Locke and the Problem $Depravity (Oxford: Clarendon Press, 1988), 117ff and passim, and Mehta, Anxiety $Freedom, 98-110,125,164, with Pangle, Modern Republicanism, 175-81,189-90. 15. Eugene Miller, “Locke on the Meaning of Political Language: The Teaching of the Essay Concerning Human Understanding,” Political Science Reviewer 9 (Fall 1979): 184. 16. Locke would surely deplore John Stuart Mill’s ill-chosen and pernicious rhetoric on this point, but Mill’s qualification concerning the application of his liberty principle is in a similar spirit: “Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement and the means justified by actually effecting that end” (OnLiberty, ed. Elizabeth Rapaport [Indianapolis: Hackett Publishing Company, 19781,lO). 17. Contrast the position of Gary Rosen, who asserts that neither Hobbes nor Locke “wrote at any length on the problem of founding, or, for that matter, seemed to consider it a problem” (American Compact:James Madison and the Problem $Founding [Lawrence: University Press of Kansas, 19991, 88). For the h n damentals of my own argument concerning founders or prefounders in Locke, I am indebted to Peter Josephson’s illuminating discussion in his forthcoming manuscript, The Art of Governance:Locke’s Use of Consent. 18. See Rousseau, On the Social Contract, Book 11, chapter 7. 19. I provide a fuller discussion of these aspects of Locke’s comprehensive constitutional reform in Our On4 Star and Compass (Lanham, Md.: Rowman &Littlefield, 1998), 179-208,226-36. 20. See especially Machiavelli, Discourses on Livy, 111.1. 21. Consider Locke’s own ironic rhetoric in the Essay’s “Epistle to the Reader,” as he addresses his refounding of philosophy or science (or his continuation of Bacon’s refounding) not to the “masters of knowledge” but rather to “men of my own size.” 22. See Machiavelli’s notorious account of Cesare Borgia’s use of “Remirro de Orco,” in The Prince, chapter 7. 23. Alexander Hamilton et al., The Federalist, ed. Clinton Rossiter and Charles R. Kesler (New York New American Library, 1999), #38,199-200. 24. For Jefferson’s advice, see his letter to Samuel Kercheval,July 12, 1816, in Koch and Peden, The L$Z and Selected Writings of ThomasJefferson, 674. On his proposal for regular constitutional reframings, see Jean Yarbrough‘s discussion, in

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chapter 5 in the present volume, of Jefferson’s understanding of the principle, “the earth belongs to the living.” 25. Michael G. Kammen, A Machine that Would Go The Constitution in American Culture (New York Knopf, 1986). 26. I elaborate this point in Our Only Star and Compass, 190-96. See also Harvey C. Mansfield, Jr., “On the Political Character of Property in Locke,” in Powers, Possessions, and Freedom, ed. Alkis Kontos (Toronto: University of Toronto Press, 1979). 27. See again Zuckert’s discussion of natural executive power, Natural Rights, 221-40. 28. In affirming that in political society proper, “all private judgment of every particular member [is] excluded” (TTII.87), Locke does not contradict or retract his insistence on unalienable rights to judge governmental legitimacy. Members surrender the right to judge controversies, as long as a common judge is present. They do not surrender the fundamental right to judge whether a common judge is present. 29. One significant implication, for instance, is that, despite his assertions of a universal obligation to military service and of the soldier’s obligation to obey the most unreasonable commands, Locke’s principle yet entails societal and individual rights to judge the justice of governmental war-making, in means and ends. Consider the implication, in this respect, of 2771.179, as well as Locke’s repeated suggestion, in chapter 16, “Of Conquest,” that there may be many subjects of an aggressor government who refuse their consent to its aggression. 30. See, for example, TTII.156,222: the legislature is to engage in “mature deliberation” and weigh “the Reasons on all sides” of its debates. Consider also 11.209, where Locke suggests that liberty of conscience may belong among those unalienable liberties whose denial constitutes just cause for resistance. (See also LCT 51,55.) 31. Cf. again the Declaration: “whenever any Form of Government becomes destructive of these ends, it is the Right ofthe People to alter or to abolish it, and to institute new Government” (emphasis supplied). 32. This account of individuals’and societies’rights of resistance carries implications for at least one significant American controversy. Although Locke holds that the individual parties to a compact reserve the right to judge whether the compact’s terms are being properly observed, he implicitly denies that a legitimate constitutional order must respect a right of secession. Individuals and minorities who judge themselves oppressed may withdraw “themselves, and their Obedience” from their current societies and join others or, where possible, set up new governments “in other places” (TTII.115). But commonwealths do not and need not permit their own dominions to be “dismembered”(117). The first natural law of society commands “thepreservationofthe Society’’ (134), and it would be clearly contrary to their preservation for societies to allow disaffected individuals and minorities to remove portions of their territories and set up new, potentially hostile

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societies on them. Locke’s observation in another context is also apt here: a constitution that required unanimity or recognized a right of secession “would make the mighty Leviathan of a shorter duration, than the feeblest Creatures . . .which cannot be suppos’d, till we can think, that Rational Creatures should desire and constitute Societies only to be dissolved” (98). While Lincoln’s idea of compact is not identical to Locke’s, his contention in his First Inaugural Address is perfectly in keeping with Locke’s argument: “Plainly, the central idea of secession is the essence of anarchy.” 33. Harvey C. Mansfield, Jr., Taming the Prince (Baltimore: Johns Hopkins University Press, 1989), 208. 34. Consider Locke’s attempts to raise in his readers a proud contempt for the condition of slavery-slavery is to be regarded first as a “vile,” then as a “miserable” estate (TT 1.1;cf. 11.23, l63,239)-and a righteous indignation and even hatred for the wielders and seekers of absolute, arbitrary power (epigraph, 11.10, 11,16,93, 172,181,228). 35. The Spirit of the Laws, 11.2. 36. Locke’s conception of laws primarily as “fences” may be revealingly compared as well as contrasted with Hobbes’ more restrictive characterization of the laws as “Artificiall Chains” (Leviathan, chap. 21). Locke’s alternative metaphor clearly signifies a more expansive defense of human freedom, but the fundamentally defensive purpose of the law is the same in the two thinkers. Locke’s legal fences are erected to demarcate the boundaries of our properties and to protect those properties against others. 37. Contrast Martin Seliger’s claim that “Locke’s political society presupposes the coexistence of contractual with such natural ties as the modern conception of a nation associates with it” (“Locke, Liberalism, and Nationalism,” in John Locke: Problems and Perspectives, ed. John Yolton [Cambridge: Cambridge University Press, 1969],22). 38. This is not to characterize Locke as an extreme or naive cosmopolitan. As appears in his introductory praise of the “generous Temper and Courage” of the English nation (TTI.l), Locke acknowledges the need to moderate or familiarize the universalist rationalism of his argument for civil government with scattered appeals to more particularistic, patriotic sentiments. Nonetheless, the patriotism to which Locke appeals is an enlightened patriotism. 39. Interpreting the term “assistance . . . to the publick” as a reference to taxes, some commentators (e.g., C. B. MacPherson, The PoZiticaZ Theory OfPosessiveIndividuaZism [Oxford: Oxford University Press, 19621, 251-58; M. Seliger, The Liberal PoZitics ofJohn Locke [New York: Praeger, 19681,285-86) view the statement in TT 11.158 as evidence of the ultimately oligarchic character of Locke’s constitutional order. But this emphasis on activity and achievement does not signify any predominantly oligarchic commitment on Locke’s part. The assistance to the public upon which Locke insists surely refers in part to the payment of taxes upon one’s estate (140). But one should not ascribe to Locke the supposition that taxpayers are wealthy, so that representation based on taxation would necessarily

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exclude the poor. Moreover, one should consider the alternative contributions to public well-being that those without estate or taxable property might make to justify their claim to representation. Especially given the evidence, cited above, concerning members’ obligation to serve in defense of the commonwealth, it seems likely that the contribution that Locke expects of the “numerous” may take the form of military service, where needed, as well as productive labor. Viewed from this perspective, the Lockean representation of numbers and wealth signifies a proper reward for contributions to the community’s security and prosperity, or to its defense against the recurrent dangers posed by human nature and by nature in general. 40. The Federalist #51, p. 290. 41. Locke’s exact words are: “The Executive Power placed any where but in a Person, that has also a share in the Legislative” (TT 152), is subordinate in the manner described. But in the preceding section, he implies that an executive or monarch with an absolute veto over legislation signifies an ill-framed or illegitimate constitution, as a violation of the requirement of a representative, supreme legislature (cf. 151 with 159). In this reading, I follow the excellent discussion of Robert Faulkner, “The First Liberal Democrat,” 33-35. 42. Consider also the insightful and provocative discussion by Mansfield, Taming the Prince, 195-204. 43. Given the relative brevity as well as the ambiguity of Locke’s remarks on the subject, I refrain from an extended, thematic discussion of the status of the judicial power in Locke’s constitution. A few points are worth noting. First, Locke appears to place the judicial power mainly in the hands of a body of specialized, professional ((LindZtjrerentand upright,” “knownAutboriz’d’)judges (TT 131,136; cf. 125). While the people must retain their right to judge the legitimacy of government by their interpretation of the law of nature, Locke stops short of providing them with the power to render regular legal or constitutional judgments. O n the other hand, judges seem to be more clearly “ministerial and subordinate” than are chief executives. Judges are to decide controversies and to “dispenseJustice” only by reference to “established”or “promulgatedstanding Laws” (125,136). Locke seems to accept executive prerogative, mindful of its dangers (see 166), only as an extraordinary, emergency power. A power of judicial prerogative would mean both a more regularized power to contravene the will of legislative representatives and a power frequently less visible and accessible to popular judgment. Locke’s deep mistrust of priestly elites in various forms seems, therefore, to incline him to limit the independence of judges. Finally, however, Locke’s repeated references to an “original Constitution” (153-57) as well as the logic of his argument seem to indicate at least an openness to, if not a quiet endorsement of, the device of a written constitution. But if this is so, then as Alexander Hamilton and John Marshall maintained, the practice of judicial review would seem almost inevitably to follow. How to secure effective popular control over this sort of prerogative would then be a problem that Locke leaves for the American Founders and others to solve-or not to solve-as the case may be.

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Social Compact, Common Law, and the American Amalgam: The Contribution of William Blackstone Michael Zuckert

&r general topic is “The American Founding and the Social Compact.”l We wish to know what to make of the presence of the theme of social compact in the thought of the American Founders. That it was present is undeniable; almost all statements of political principle that survive from the founding era contain reference of one sort or another to the idea of social compact. Even where it does not appear to be present, as in the Declaration of Independence, a little probing finds it there, lurking in slightly different language.2 We are holding the social compact under the light for close inspection because now, in the early years of the twenty-first century, we are not certain how pleased we are to see social compact so centrally entangled with the Founding. Although the theory still lives in a form much modified from that to which the American Founders adhered, it no longer has the vogue it did in the seventeenth and eighteenth ~enturies.~ Social compact theory in the form to which the Founders gave their allegiance typically carried along with it the ideas of a state of nature and of natural rights. The compact was the means by which human beings brought themselves out of the prepolitical state of nature into civil society for the sake of securing their otherwise insecure natural rights. This theory was always controversial; well before the American Founding Aristotle firmly affirmed what the social compact theory appeared to deny-that political life is natural and that human beings are naturally political beings. Even more to the point, he spoke explicitly of a contractually based polity as a grossly deficient political association. Aristotle, then, is an important authority against social compact thinking and 37

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thus, apparently, against the American Founding. Skipping ahead many centuries we find social compact thinking just as challenged in our day. In addition to later-day admirers of Aristotle we have among us individuals known as communitarians, who share the Stagyrite’s animus against contractarian thinking, and who thus necessarily stand at some psychic and intellectual distance from the American Founding. It would be a very large task to elucidate all the deficiencies the critics discern in social compact theory. I limit myself to three. The first such charge holds social compact thinking to be bad-very bad-history. Everything we know about human beings tells us that there never was such a thing as a state of nature, nor any moment of contracting out of such a state. Indeed, the thought goes, if there actually was a state of nature it is nearly impossible to conceive the mechanics of a social compact: Who called the contractors together? Where did they meet? How can you have a town meeting without a town? Moreover, human beings are more deeply social than the theory allows. Human beings are born into families and larger social units; they are human only insofar as they possess language (itself a thoroughly social phenomenon) and orient themselves around other human beings. Even many animals are more social than compact theory posits humans to be, but that merely shows the absurdity of the theory, for human development requires social life far more emphatically than animal development does. A second cluster of charges finds the theory to be poor political philosophy.This charge is particularly stinging for it finds compact theory especially inept at accomplishing the explicit goal its artificers set out to achieve-to account for the origin not only of political life, but of political obligation. The compact is held to be the source of obligation for otherwise free and equal human beings. But the enemies of compact point out how problematic this claim is. As Willmoore Kendall, one of contractarianism’s fiercest critics, once insisted: The contract fails as an explanation of the duty or obligation to obey the laws of society, which is to say the contract cannot itself create the obligation to Will its own terms; that obligation . . . must therefore be explained . . . in terms other than ~ o n t r a c t . ~

The compact (assuming we can supply a plausible interpretation of such) does not succeed in overcoming the individualistic and anarchic beginning point of the state of nature. It thus fails both as an explanation of social life and as an explanation of the normative claims of society, law, and gov-

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ernment. It is no accident that defenders of secession looked to the compact doctrine as supplying the chief premise for their centrifugal conclusion. It is also no accident, contemporary communitarians say, that the rights orientation of the compact philosophy has deleterious consequences for society. Compact theory identifies the protection of the individual’s rights as the sole end of political life; but the orientation around rights is precisely the trouble with modern society, they say. It leads everyone to assert his or her own claims and to slight or ignore the claims of others or of the community. It points to an emphasis on individual autonomy that is at once selfish and destructive of the social fabric and thus ultimately self-destructive, for it leads sooner or later to the erosion of the common bonds of ~ociety.~ Finally, the compact theory is rejected by many of our most sophisticated contemporary thinkers as bad philosophy, because it raises its claims in terms of nature-it wishes to speak of the “natural condition of man” and of “natural rights.” But critics like Richard Rorty now claim nature to be, essentially, a myth. Or, more modestly, some argue human beings are not well grasped in terms of the category nature; we are free, or flexible, or historical beings. In either case, we cannot privilege those qualities dubbed natural as a way of identifying and valorizing “naturalrights.” Without the “natural condition”of man and without natural rights, social compact theory loses both its “fromward” (the horrors of the state of nature) and its “toward” (the security of natural rights)-to borrow terms from Thomas Hobbes. It should be evident that all the doubts about social compact theory I have mentioned are not likely to be equally held by all doubters. Aristotle, who argues against contractarianism for possessing an inadequate grasp of nature, is not likely, for example, to sign on to Rorty’s doubts based on his rejection of nature per se. Nonetheless, the point is clear enough: social compact theory requires reconsideration precisely because it seems so vulnerable to such a variety of serious critiques; given contractarianism’s deep entanglement in the founding, the vulnerability of compact theory renders the founding vulnerable as well. BLACKSTONE AND THE AMERICAN FOUNDING We turn to William Blackstone in the context of our concern with “The American Founding and the Social Compact.” At first glance William

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Blackstone may seem an odd figure to interrogate on our theme. Admittedly, he did endorse the theory of social compact in his Commentarieson the Laws ofEngZand,but he combined that with the endorsement of a very different notion of law and legitimacy more akin to traditional theories of the common law. Moreover, Blackstone was, of course, English, and died in 1770, well before the revolution and the subsequent founding events in America. He had been a member of Parliament during the years surrounding the agitation over the Stamp Act and had taken the anti-American position, defending the validity of the Stamp Act and supporting the Declaratory Act that accompanied that act’s repeal. The Declaratory Act, it will be recalled, affirmed that Parliament had “full power and authority”to govern the American colonies “in all cases whatsoever,”a claim the Americans most emphatically rejected. In his famous Commentaries, moreover, Blackstone had denied that the colonists possessed the privilege of appeal to the English common law and affirmed that they were subject, like a conquered territory, “to the control of Parliament” (Comm. I, 105).6Given such Tory positions, Blackstone cannot even be considered an honorary American founder like Edmund Burke or Charles Fox, parliamentarians who defended the American cause. Despite his explicit hostility to the American cause Blackstone still has a claim on our attention as students of the American Founding. To take but one piece of evidence for that conclusion: according to the citation analysis performed by Donald Lutz, Blackstone was the second most cited secular author during the founding era (1760-1805) in America. He came in slightly behind Montesquieu, but well ahead of thinkers frequently cited as great authorities for the Americans such as John Locke and the English cat^.^ Not only was he a much larger presence in American texts than political thinkers like Hume or Cat0 or Pufendorf, but he also dwarfed by far Sir Edward Coke, the only other spokesman for the English legal culture to have been at all widely cited by founding-era Americans. Blackstone appeared roughly six times more often in American writings than Coke did. It would probably be no exaggeration to say that over the course of the founding period Blackstone came to replace Coke in the American mind as the chief authority on the common law. The pattern visible in Lutz’s study is revealing. In the decade of the 1760s, when Blackstone’s book (vol. I: 1765; first American edition, 1771) was still relatively new, Coke was cited five times more frequently than Blackstone. In every decade thereafter, the citations to Blackstone increase in numbers, astro-

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nomically so in some cases, while the citations to Coke decline, so that Blackstone outstrips Coke in later decades by margins of 4:1,5.5:1, and during the 1780s even by as much as 7 1 . Between 1790 and 1805 Blackstone even outstrips the perennial favorite Montesquieu. As Dennis Nolan says, “the law which the Americans adopted was the English common law as it was interpreted and described by Blackstone.”’ Blackstone, despite his Tory sympathies, was a great authority for and teacher of the Americans. His claim on our attention derives not merely from his sheer quantitative presence in American texts, but even more from his contribution to “the truly remarkable occurrence that stands at the opening of the [American] tradition: the assimilation by the natural rights philosophy of a variety of what are often thought to be competing traditions of political thought.” “The American political tradition,” I have claimed elsewhere, “consists precisely in the unique amalgam so con~tructed.”~ One dimension of that amalgam is particularly relevant to Blackstone. During the conflict with Britain leading up to the revolution, the Americans made clear to one and all that they believed their rights were being violated by the British, but they confused both the British and later scholars about which rights they believed to be at stake. They spoke equally strenuously of their rights as rights of Englishmen (derived from charters, or from the British constitution, or from the common law), but they also spoke of their rights as natural rights, derived, as the name suggests, from universal nature and (as the Declaration of Independence puts it) from “the creator.” It was one of the more significant dimensions of the American amalgam that it brought together these two types of rights, so different in character, source, and content.1° Efforts to amalgamate natural rights and the common law surely predate Blackstone (on both sides of the Atlantic), but nobody worked out that synthesis so thoroughly, in such detail, and so persuasively as did Blackstone. As James Stoner well said, “The Commentaries are a subtle work because their author has undertaken a difficult task to reconcile . . . the principles of liberal political theory and the practices of English common law.”ll Blackstone’s general strategy is visible in the opening chapters of his volume dedicated to “the rights of persons.”The “rights of Englishmen,” secured by the common law and the constitution, turn out to be “no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals.” Blackstone means by this not merely what might in principle be said of

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rights within any political-legal order, but something quite distinctive about the English order: the rights of Englishmen “were formerly . . . the rights of all mankind; but in most other countries of the world being now more or less debased and destroyed, they may be said to remain, in a peculiar and emphatical manner, the rights of the people of England” (Comm. I, 125). Although Blackstone was no friend to the American cause, he supplied the Americans with some of their most potent intellectual ammunition, including most especially confidence in their ability to appeal interchangeablyto legdconstitutional and to natural rights. Blackstone promulgated a sophisticated version of the rights amalgam and owed his popularity in America to his having done so. Moreover, the significance of the rights amalgam can hardly be overestimated. When the Americans came to their moment of truth, to the revolution that ushered in their novus ordo seelorum, their new order of the ages, they acted in remarkably conservative or, perhaps better put, preservative ways. Unlike the French, who saw the need for a wholly new legal code to accompany their revolution, the Americans preserved the inherited legal order, and with it most of the fabric of inherited society, precisely because they had come to see their natural rightdsocial compact political philosophy to be deeply congruent with their rights under the common law. The great changes worked in the common law after the revolution reveal that there was much that needed revising in the inherited legal order in the light of the political philosophy and political economy of the new order, but nonetheless the Americans did not see their revolution requiring the overturning of everything old and inherited.12 It is difficult not to attribute much of the great success of the American Revolution, compared with the French and later revolutions, precisely to this preservative side of the American mentality. Blackstone, ironically, thus contributed greatly to a cause for which he apparently had little sympathy by contributing so much to the formation of the American amalgam. BLACKSTONES PROJECT Blackstone attracts our attention then not merely because he was a large influence on the Americans, not merely because they came to see the common law through his eyes, but most important, because he was one of the chief architects of the potent new political amalgam forged in America. Partly because of Blackstone, the Americans could at once think of polit-

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ical society as the rationalist product of a social compact and as an entity shaped and governed by a law built on custom, deriving its authority from its antiquity and “grown”character. Blackstone’s presentation of his views on “the original contract” (Comm. I, 47) occurs in an important section of his text devoted to the topic “Of the Nature of Laws in General.” That section is paired with a section devoted to the topic “Of the Laws of England.” These sections follow immediately on his opening discussion “On the Study of Law,” a reprint of his 1758 inaugural lecture as Vinerian professor in English law. As the first ever to offer lectures in English law at an English university, Blackstone had to begin with a statement of the rationale for this great innovation. Some readers of Blackstone are tempted to dismiss his discussion “Of Laws in General” as insignificant; a recent editor decrees that section “a brief and unconvincing essay on the natural law background of the English legal system” (Comm. I, vi). “Very commonly,”John Finnis notices, “Blackstone’sintroductory chapter on ‘The Nature of Laws in General”’ is considered as merely “ornamental, a mere concession to the stylistic or pedagogical conventions of the age.”13 Those who tend to dismiss it do so largely on the ground of Blackstone’s well-known legal positivism: law is the command of the supreme authority. If that is so, then there seems little room for natural law and related matters.14 I would like to suggest that this is quite an inadequate basis on which to dismiss Blackstone’s treatment “of the Nature of Laws in general.” First, it is not so very brief as that editor suggests it is; it runs twenty-four pages in Blackstone’s first edition, almost as long as his necessarily more detailed following section “Of the Laws of England.” Blackstone’s treatment of the topic is surely very long compared to the text one can hardly help but think of when one reads Blackstone’s title: the first book of Montesquieu’s Spirit ofthe Laws, a work cited approvingly many times in Blackstone’s Commentaries.More generally, we must not judge the significance of things by the number of pages devoted to them. The editor also finds Blackstone’s essay “unconvincing.”H e does not tell us why, but, as a legal historian, perhaps he finds philosophic discussion per se little to his taste. In any case, it seems premature to dismiss so lightly a discussion on a topic like “the nature of law in general” when proffered by an author of Blackstone’s stature. If that discourse is “unconvincing” (or better, if it deserves to be unconvincing), that will have to be shown via a careful study of it.

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Perhaps the editor finds this discussion “unconvincing”because of its alleged conflict with Blackstone’s alleged “legal positivism.” Leaving aside for the moment the substantive questions of just what Blackstone has to say about the nature of laws in general in relation to positive law, the editor’s conclusion is on its face puzzling. To take the example of a notorious legal positivist, surely we would not say that Thomas Hobbes’ adoption of a positivist view of law makes his lengthy discussions of natural law, natural right, and related matters unconvincing or uninteresting. Quite the contrary. Our editor’s reservations (and those of many others) ought not to replace the impression Blackstone’sjuxtaposition of his two opening chapters is no doubt meant to make-that the question of the relation between “law in general” and the “English law” is an urgent question for one attempting a scientific treatment of the latter. As Blackstone makes clear in his opening discourse on the study of law, the universities should ensure that legal science be taught within their halls and not be left entirely to the lawyers themselves, as in the Inns of Court, because the English law embodies to a particular degree the true principles of political and civil liberty, an insight Blackstone concedes he derived from Montesquieu. If the future rulers of Britain do not understand their legal heritage as the legal embodiment of the abstract truths of political philosophy, then they are likely to be inadequate guardians of this precious order when their turn to take custody of it comes. The university graduates will become the guardians of the English constitution, the makers, repealers, and interpreters of the English laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity. (Comm. I, 9; IV, 36)

Blackstone worries about “the mischiefs that have arisen to the public from inconsiderate alterations in our laws.” These alterations are due to “the defective education of our senators,” who approach the inherited law ”with all the rage of modern improvement” (Comm. I, 10). A better education in the law will temper this “rage”and, it appears, will do so by showing how the law, properly understood, already largely achieves the goals sought by “modern improvers.” The very enterprise of teaching law in the university and writing a popular Commentary is premised on Blackstone’s belief that he can show the laws of England to be properly

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founded in and harmonious with the truths about “the nature of law in general.”” The project of attempting to locate the common law within a broader philosophic context is not original with Blackstone. Take for example Christopher St. Germain, perhaps the leading writer on the common law of the sixteenth century, and author of the text generally known as Doctor and Student.16St. Germain’s work takes the form of a pair of dialogues between a doctor of divinity and a student of the common law. Their conversation is initiated by the Doctor, who has “had a great desire of long Intro., 1). time to know whereupon the law of England is grounded” (DS, The Student hesitates to reply immediately-perhaps as a student of the law per se the question as to its “very grounds” does not make good sense to him. He requires the Doctor to ‘‘first show (him) somewhat of other laws that pertain most to this matter, and that doctors treat of, how laws have begun.” The doctors are, so to speak, the investigators into the philosophy of law and the student must first know what they say before he can “shew. . . what be the grounds of the law of England” ( D S , Intro., 1). The Doctor happily obliges, explaining to the Student “that doctors treat of four laws”-the eternal law, the law of nature, the law of God, and finally, the law of man (DS, Intro., 1-2). With that in hand, the Student fulfills his part of the deal-to discourse of the law of England. The question posed and the manner of answering it make clear what St. Germain’s main task is to locate the English law (especially the common law) within the context of the broader philosophy of law espoused by the Doctor. Judging from internal evidence in the dialogue, the lawyers do not do this of their own accord, and they do not perhaps recognize the need to justify the English law/common law in terms of general criteria of legal validity such as the Doctor propounds in his exposition of “the four laws.” The basic structure of Doctor and Student, then, is identical to the structure of the introductory parts of Blackstone’s Commentaries, of law or laws in general, and then of the English law. Lawyers and legal historians (like the editor of Blackstone I quoted earlier) may not spontaneously be given to raising the broader contextual question, but philosophically minded men like St. Germain and Blackstone quite naturally do so; indeed, both Blackstone and St. Germain seem to see the larger question as indispensable. That is to say, the parallel testimony of St. Germain should contribute to our hesitancy in joining those readers who dismiss Blackstone’s chapter “Of the Nature of Laws in General” as “ornamental.”

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DOCTOR AND STUDENT: NATURAL LAW AND COMMON LAW In the context of the parallel enterprises of St. Germain and Blackstone, the deviations we find in their respective presentations of “law in general” are especially significant. St. Germain’s Doctor identifies four distinct kinds of law that “pertain to the matter”: law eternal, the law of nature (also called the law of reason), the law of God, and the law of man. It takes but slight acquaintance with medieval philosophy of law to recognize the Thomistic classification of law here. Not only does he identify the same set of laws, but he defines these in most cases in terms borrowed directly from the Summu Theologiae.” O n the face of it Blackstone has a trimmer list; he speaks of the law of nature, the law of God, and the human law (Comm. I, 39-42). Later he adds the “law of nations,” understood in the modern (post-Grotian) sense of “a law to regulate [the] mutual intercourse” of nations (Comm. I, 43). Blackstone does not mention the eternal law, a departure of some significance, it would seem, for, according to St. Germain, “all other laws be derived of it.”’* Yet on second glance Blackstone has an equivalent to St. Germain’s Thomistic eternal law. The two medieval thinkers had identified the eternal law with the governing of all things by God “the creator and maker of all creatures’’ (DS,I, i, 3). Blackstone speaks analogously of the supreme being, who formed the universe and created matter out of nothing. [He] impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which a l l movable bodies must conform. (Comm. I, 38)

Although he does not call these universal principles of motion the eternal law, yet they share with the latter their source in God the creator and their operation in all created things. Yet Blackstone’s hesitancy to label these laws of motion the eternal law suggests that he is conceiving these laws differently from Aquinas and St. Germain. The Doctor defines the eternal law as “the reason of the wisdom of God, moving all things by wisdom made to a good end” (DS, I, i, 3). As a law moving all things to “a good end” this eternal law escapes human knowledge. “This law eternal no man may know, as it is in itself, but I, i, 4). only blessed souls that see God face to face” (DS,

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Blackstone’s parallel laws turn out to be quite different. First of all, the paradigmatic instances of such law are “the laws of motion, of gravitation, of optics, or mechanics.” Where St. Germain and Aquinas emphasize the good that is the end to which the eternal law ordains all things, Blackstone emphasizes instead the necessity that characterizes his laws: “When he put that matter into motion, he established certain laws of motion, to which all movable bodies must conform” (Comm. I, 38). These are “unerring rules,” which determine action in a “futed and invariable” way (Comm. I, 38,39). Blackstone drops not only all mention of the good end but also of the resultant unknowability of the eternal law. He seems most impressed with the ability of the Newtons of the human race, who have deciphered some of these laws of motion and who have thus laid out the real principles of action of the world. This change in the top-level law must have had implications for the way Blackstone understood the other laws as well, for, according to St. Germain, the other three kinds of law must be understood in relation to the eternal law. Although the complete eternal law is humanly unknowable, “Almighty God of his goodness sheweth of it as much to his creatures as is necessary for them.”The other three kinds of laws differ in the manner in which God “maketh this law eternal known to his creatures reasonable”: If known by “the light of natural reason,” then we have the natural law or the law of reason; if known “by heavenly revelation,” then the law of God; if known “by the order of a prince, or any other secondary governor that hath power to bind his subjects to a law,” then the law of man. St. Germain quite explicitly draws the conclusion that follows from this way of articulating the types of law: “Therefore the said three laws . . . which hath several names after the manner as they be shewed to man, be called in God one law eternal” (DS,I, i, 4).The three others are not, then, separate or different laws, but all manifestations of the one and only true law, the eternal law. Blackstone thinks of “laws in general” quite differently. Rather than assimilating the other three kinds of law to the highest or most universal laws of the creator, he distinguishes them sharply from those laws. The universal laws are those “that must be invariably obeyed,” but the other laws are “precepts by which man, . . . a creature endowed with both reason and freewill, is commanded to make use of these faculties in the general regulation of his behavior” (Comm. I, 39). These laws, as opposed to the universal laws, lack necessity because obedience to them is the result of voluntary action; moreover, they make reference to “good and evil” (Comm. I, 40).The latter comes into the picture only in these examples of law

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taken “in a more confined sense” of “rules, not of action in general, but of buman action or conduct” (Comm. I, 39).19 Obviously under the spell of a modern scientific view of nature, Blackstone opens up a gap between the most universal laws that govern the universe and those laws that govern humankind.20Insofar as Blackstone and St. Germain have the same agenda, that is, to locate the English law within a broader context of an understanding of the nature of law in general, they are executing it quite differently. Not surprisingly the Doctor’s version of the law of nature is typically if not quite orthodoxly Thomistic. As that aspect of the eternal law humanly, naturally, and rationally knowable, the law of nature above all is marked by its teleological character, that is, by the good at which it aims. All beings aim at the good of survival and the law of nature as a universal law (i.e., as a principle of action), for the beings aim at the good of “conservation of their being” (DS, I, ii, 5). Like Aquinas, the Doctor sees being itself as the good for beings. The human being, moreover, is prompted to its “felicity,” a good beyond conservation of being. The law of nature (or of reason-that is, the law of nature as it particularly applies to human beings) “ordereth a man to the felicity of this life.” That turns out to particularize the law of reason in relation to the universal law of nature, and partially to distinguish it from the law of God as well, for the latter is not only knowable in a different way, but has a different aim: not the felicity of this life but “the felicity that ever shall endure” (DS,I, ii, 6 ) .The Doctor’s law of reason applies to all men, non-Christian as well as Christian, and surprisingly perhaps “is preferred before the law of God” (DS, I, ii, 5) where the two overlap, that is, where the law of God treats the felicity of this life. The Doctor is a strong innatist; he restates the Thomist doctrine in such a way so to emphasize, more than the master had, the innate or selfevident character of the law of nature. He goes so fir as to use a phrase ill later deploy (in order to reject) in his Second Treatise as part of Locke w his war against the idea that there is any innate moral knowledge. As St. Germain’s Doctor has it, “this law is always good and righteous, stirring a man to good, and abhorring evil. . . . [It] is written in the heart of every man, teaching him what is to be done, and what is to be fled.”21The Doctor understands this innateness very much as Aquinas does, even if he uses much stronger language to describe it. The first principles of action are present in that faculty of the soul known as synderesis, and thus known innately (DS, I, xii-xv).

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From the law’s innateness the Doctor draws rigid conclusions that reveal the real problem toward which the whole of Doctor and Student is directed: because it is written in the heart, therefore it may not be put away, ne [sic] it is never changeable by no diversity of place, ne [sic] time: and therefore against this law, prescription, statute nor custom may not prevail: and if any be brought in against it, they be not prescriptions, statutes nor customs, but things void and against justice. And all other laws, as well the laws of God as to the acts of men, as other, be grounded thereupon. (DS, I, ii, 5)

With that amazing set of claims the Doctor’s real agenda in promoting this conversation about the laws of England begins to hover into view. The laws of England, dependent as they are for the most part on ancient customs and common law judges, variable as they are from place to place within the country, as little construed in reference to the law of nature as the Stxdent concedes they are, seem not to qualify as legitimate law under the Doctor’s standard (DS,I, xi). One must be careful not to identify St. Germain with his Doctor or the point of view of the whole work with the latter’s version of Thomism, however. The Student, too, speaks for St. Germain and indeed he gives important lessons in how the English law can meet the criteria of legitimacy set forth by the Doctor. More important, he shows the Doctor that his criteria need to be amended. The Student concedes both that the laws vary in England and thus fail to achieve the universality and uniformity on which the Doctor first insists, and that they do not derive in all cases from reason. As he concedes: it appeareth that the customs aforesaid, or other [sic] like unto them, whereof be very many in the laws of England, cannot be proved to have the strength of law only by reason. For how may it be proved by reason that the eldest son shall only inherit from his father, and the younger to have no part? . . . Also the law of property is not the law of reason, but the law of custom, howbeit that it is kept, and it is also most necessary to be kept, in all realms, and among all people; . . . the old custom of this realm is the only and sufficient authority to them [that be learned in the laws of the realm]. (DS, I, vii, 24-25)

The Doctor’s demand for derivability of the law of man from the law of reason cannot be satisfied; the most one can achieve is to require that the

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human law be not “contrary to the law of reason, or the law of God,” a standard the Doctor comes to endorse, and one which he perhaps always had up his sleeve (DS, I, xi, 36). To summarize briefly the argument thus far: the dialogue is set off by the prima facie difficulty that the English system of laws, especially the English reliance on customary or common law, apparently cannot meet the standards for valid law as these come to light within the reigning Thomistic philosophy of law. The Student, apparently ignorant of this philosophy, proves clever enough to show that on the whole the English law can satisfy those criteria, and perhaps more important, that the criteria as initially stated require revision. This conclusion only brings to an end the first stage of the dialogue, however, for the Doctor, even though accepting the Student’s amendments, still has objections to the English law. H e thinks it does in many places actually violate the law of reason, or as he also puts it, the law violates conscience. The Student is forced to concede that this happens sometimes, in indiI, xii, vidual cases if not in the general rules of law themselves (DS, 37-3 8). The Student’s inability to vindicate the law entirely reveals the Doctor’s ultimate destination: he seeks to implant more firmly in the English legal consciousness the need for equity, epieikeia as Aristotle called it, as a trumping appeal over customary law, and for equity courts as superior in authority to common law courts22(DS,I, mi, 44-74). Doctor and Student thus contains a complex triple movement: first, it holds the English law up to a version of the Thomist philosophy of law; second, it requires a revision or at least refinement of that version of Thomist theory; third, it identifies a need for the development of the legal system in a somewhat different direction, just how different is not entirely clear, given the Student’s efforts to show that the common law system does allow some room for considerations of equity. Doctor and Student is a truly dialectical work, then: neither of the two ways of approaching law (Thomistic legal philosophy as deployed here and the common law mindset) comes out of the confrontation quite as it came into it. Even though the elements in the discussion are rather different in Blackstoneb Commentaries, nonetheless, the overall character of the confrontation and its result are rather similar. Doctor and Student, in other words, is a formal model for Blackstone’s important opening discussion and helps greatly in orienting us in the proper way to grasp the subtlety of the Vinerian professor’s presentation.

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BLACKSTONE: NATURAL LAW AND COMMON LAW Blackstone’s conception of natural law is predictably different from St. Germain’s since the latter’s is a manifestation of his Thomistic notion of eternal law, very different from anything in Blackstone. Yet Blackstone’s natural law relates to his own very non-Thomistic notion of universal laws of motion, for it roots in “our own self-love, that universal principle of action.”The natural law is a prescriptive law, for unlike the law of gravity, it sets forth rules for agents with reason and free will. Nonetheless, it is grounded in a universal principle of action, which is not voluntary but is necessitous in its operation. It is a norm based on an (or the) “effectual truth” about human beings. The laws of nature, also called here “the laws of eternal justice,” are nothing but rules that direct to “the happiness of each individual.” There is a “mutual connection of justice and human felicity,”such that natural law “amounts to no more than demonstrating that this or that action tends to man’s real happiness” (Comm. I, 40-41).The whole law of nature can thus be reduced to one Lockean-Jeffersonian “precept”:“that man should pursue his own happiness” (Comm. I, 41). This law ultimately traces to God the creator: humankind has been made in such a way that certain rules must be conformed to if each individual is to achieve that to which he or she is strictly impelled (as Locke had it), his or her own happiness. Blackstone emphasizes the obligatory character of the law of nature; it is “superior in obligation”to all other laws (including the law of God?) and is binding everywhere. Blackstone goes very far in the direction of St. Germain in concluding that “no human laws are of any validity, if contrary to” the natural law (Comm. I, 41).In one sense this follows from taking these rules as ordained by God, but it seems to follow more strictly from their inner nature, or rather from the true meaning of “obligation”:laws are obligatory “in the strict sense of obligation” when it is “impossible . . . to act otherwise than as they direct” (Comm. I, 57). According to this standard the specific laws of nature do not reach the level of strict obligation;what is strictly obligatory is that we “pursue our happiness,” but we are beings with free will and reason and thus do not inevitably follow the rules of action (laws) that will lead us toward happiness. The desire for happiness is implanted in us, but not knowledge or impulse to the true means to happiness. The laws of nature are not in the strict sense obligatory. Nonetheless, it makes sense for Blackstone to call these laws of nature of higher obligation than other laws, to call them the source for the “validity,force and authority” of other

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laws: the law of nature brings to the fore the driving force of all human endeavors, the pursuit of happiness, and contains the true rules for engaging in the pursuit. Nonetheless, one must not lose sight of the fact that human beings are less obliged, in Blackstone’s sense, to the law of nature than to the laws of gravity or optics. The law of nature is not only imperfectly obligatory, but imperfectly known and effective. Human “reason is ‘corrupt”’;the human understanding is “Mof ignorance and error”; human beings are moved by “passions” and “prejudices”(Comm. I, 41). This points to the need for supplements to the law of nature, of which there are two-the law of revelation and the human law. In the first God reveals directly (some of) the precepts of the natural law. Unlike the Doctor, Blackstone seems to see the aim of the laws of God and nature to be identical (Comm. I, 42-45). The human law is particularly important for increasing the effectiveness, or what is the same thing, the obligatoriness of the natural law. Human law is marked above all by “the penalty annexed to it”; “Herein is to be found the principal obligation of human laws” (Comm. I, 57). Even with attached penalties human laws do not reach the level of strict obligatoriness, but they come closer in an important sense than the natural law alone, for “by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law” (Comm. I, 57). Blackstone sees the penalties that compel obedience to be more effectively productive of action than “rewards,”which only “persuade and allure” (Comm. I, 57). He seems to agree with Locke that pains and the threat of pains move men more certainly than pleasures and the promise of pleasure.23 Blackstone’s doctrine of natural law differs in all the most significant ways from the (by his time) traditional laws of nature as expounded by the Doctor and Thomas Aquinas. The most important difference lies in the core or first principle of the law of nature. For Blackstone, as we have seen, that first principle is self-love; for the earlier thinkers, it was synderesis, the faculty of soul that contained the first precepts of actions: seek the good and flee the evil. Blackstone’s law of nature is accordingly the means to achieve what our self-love impels us to (our pursuit of happiness), where the medievals formulated the law of nature as the dictates embodying an orientation to the various forms of good suited to the character of human beings. Blackstone’s law of nature, then, is unmistakably of the modern variety, reminiscent of Hobbes’ certainly, but borrowing a good deal as well from Pufendorf‘s effort to tame Hobbes by combining him where possible with more traditional natural law writers, especially Grotius, and bor-

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rowing also from Locke’s somewhat different attempt to tame hob be^.^^ When Blackstone comes to identify what “God and nature have established,” he speaks with the voice not of St. Germain or Coke, but of Locke: “Natural rights, such as are life and liberty” (Comm. I, 54). The point of political community, according to Blackstone, is “to guard the rights of each individual member,” as it is with Locke (Comm. I, 48). Like Doctor and Student, then, Blackstone endeavored to reconcile the common law with the reigning philosophy of law, including theories of natural law. For St. Germain, the task of reconciliation was difficult, for it required modification of the criteria natural law theory invoked for ascertaining legal validity as well as modification in important places of the relationship between common law and equity law and courts within the English legal system. The difficulties Blackstone faced in attempting his own version of reconciliation, in which context his treatment of the theme of social compact occurs, were rather different and perhaps more daunting. His problem lies in a deep tension that emerges between the two visions of law that he is led to from within his two commitments to modern natural rights theory and to common law. In treating “Of the Nature of Laws in General,” Blackstone recounts the more or less standard story of the origin and nature of political authority as told within early modern political philosophy. His version contains the usual elements (though with some special twists of his own to be treated below): the state of nature, the social compact, and the constitution of sovereignty. Blackstone is famous for being quite insistent on the latter. The civil or municipal law, that is, the actual “law of England’’ on which he plans to comment, is a “rule of civil conduct prescribed by a supreme power in a state” (Comm. I, 44).Blackstone insists that 3here is and must be in all [political communities] a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty reside” (Comm. I, 49).25For Blackstone, the source of law is the sovereign, for example, in England, the King-in-Parliament. Law has a recognizable source in the sovereign and a recognizable purpose in securing rights. Blackstone endorses (roughly) the view of law Hobbes’ philosopher had deployed to challenge the theory and practice of the common law in his Dialogue. Blackstone, however, deploys that view to effect a reconciliation with the common law and common lawyers. Unlike Hobbes or St. Germain, Blackstone himself takes both parts in the implicit dialogue between the philosophic theory of law and the common law. This gives his work, compared to theirs, a distinct air of incoherence and

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leads the reader to wonder about Blackstone’s competence. According to the general discussion of law, law derives its authority from the superior or sovereign whose command it is. According to Blackstone’s discussion of English common law, these laws “receive their binding power, and the force of law, by long and immemorial usage” (Comm. I, 64), or, as he puts it at greater length: [In] our law the goodness of a custom depends on it’s [sic] having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it it5 [sic] weight andaathority. (Comm. I, 67; emphasis added) No sovereign, no command, but yet law. Where the quasi-Hobbesiad Lockean doctrine of “Of the Nature of Laws in General” privileges statute law: “Of the English Law” privileges customary law: “our lawyers,” like Coke and the students in both St. Germain’s and Hobbes’ dialogues, “are with justice so copious in their encomiums on the reason of the common law.”26Blackstone eagerly endorses some of the extravagant praise of customary law that philosophers like Hobbes and Locke noticeably do not join in. Blackstone endorses the lawyer’s judgment that “law is the perfection of reason.” He agrees with “the ancient observation in the laws of England, that whenever a standing rule of [customary] law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation” (Comm. I, 70). When he speaks like a philosopher Blackstone emphasizes the legislative power: “By the sovereign power . . . is meant the making of laws; for wherever that power resides, all others must conform to, and be directed by it” (Comm. I, 49). Or, more concisely: “Sovereignty and legislature are indeed convertible terms” (Comm. I, 46). When he speaks like a lawyer, Blackstone emphasizes the judges. The traditional customs are law, but, Blackstone asks, “how are these customs or maxims to be known, and by whom is their validity to be determined?” His answer is standard lawyer-fare: the judges. “They are the depository of the law, the living oracles.” The source of knowledge of customary law, and thus of law itself, is “the judicial decisions”-they “are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form part of the common law” (Comm. I, 69). Perhaps the most perspicacious way to capture the tension between the two Blackstones-the philosopher

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and the common lawyer-is to say that when wearing the first hat he sees law as a top-down and purposive affair, but when wearing the other hat (or wig) he sees law as a bottom-up and “grown”affair.27

SOCIAL COMPACT, CONSENT, COMMON LAW We are again forced to raise the question: Is Blackstone simply incompetent, unable to appreciate the differences and apparent inconsistencies in what he says about law? Some writers, like Daniel Boorstin or Edward Convin, seem to incline to that view, but I do not think that judgment takes us very far in understanding the amalgam Blackstone has set out to create.28Indeed, when we look attentively at Blackstone’s texts we see not real incompatibility but a quite brilliant effort to assimilate the common law to the broader political philosophy he affirms in the section “On the Nature of Law in General,”which at the same time modifies that Lockean political philosophy in order to accommodate the common law better. Formally he achieves just what St. Germain did before him, with the difference of course that he adheres to a variant of social compacdnatural rights liberal political philosophy rather than the philosophy of Thomas Aquinas. It is time, then, to turn to Blackstone’s retelling and modification of Lockean doctrine.29Just as Blackstone is at first sight inconsistent or at least puzzling in what he has to say about law, so he is at least paradoxical in what he says about the social compact. He first broaches that subject in the context of his treatment of “the nature of law in general”; it is necessary to know something about “the nature of society and civil government; and the natural right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws,” in order to understand what the legislative power is that is the source of laws (Comm. I, 46-47). There Blackstone tells us quite bluntly that he cannot “believe with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain [and] entered into an original contract” (Comm. I, 47). He does not begin to take this story seriously: “this notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted” (Comm. I, 47). Blackstone seems to agree with some of the more sociologically minded critics of the idea of radical asociality expressed in the idea of the state of nature.

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Indeed, Blackstone rather accepts what is clearly a blend of biblical and Aristotelian history. He begins his historical account with “single families,”which grew ever larger into extended families under patriarchal rule. Further growth produced a migratory phase, which was put to an end by the emergence of agriculture. That led to a reunion of tribes that had separated (Comm. I, 47). The decisive event in the emergence of political life appears to have been the development of agriculture, and with it of ownership of land (see 11,l-2). Blackstone unhesitatingly draws the conclusion from his historical sketch-“society had not it’s [~ic]formal beginnings from any convention of individuals” (Comm. I, 47), that is, there is no such thing as the social compact. Yet in the immediately following sentence Blackstone says that this “original contract of society . . . in nature and reason must always be understood and implied” (Comm. I, 47). The social contract does not existand yet it must be understood and implied. Blackstone’s paradoxical formulation is intended to call the attention of the attentive reader to two ways in which he deviates from Locke, his chief source on fundamentals of political philosophy. One is contained in his apparently wavering view on the status of social compact itselc the other is implicit in his repeated description of the contract as an “original contract of society.” Blackstone is as much a social compact thinker as Hobbes or Locke, but unlike them he is very clear that the compact is something “always [to] be understood and implied” rather than a genuine historical fact. The contract story may not be real history, but it presents the terms in which government must be thought about. It is a story that reveals some sort of truth about society and government, a truth deeper and truer than literal history.30 The social compact account of the origins “in nature and reason must always be understood and implied,” because it expresses the fundamental truth underlying the function, nature, and proper operation of society and government.The core is Blackstone’sunderstanding of “the natural liberty of mankind.” Even though human beings never lived detached from one another as the state of nature story says, still the basic moral fact about mankind is “natural liberty,” that is, “a power of acting as one thinks fit, without any restraint or control, unless by the law of nature” (Comm. I, 121). Human beings are naturally free, naturally not subordinate to the rule of others; as Thomas Jefferson put the same point-“all men are created equal.”This equality reflects the human status as “a free agent,” a being possessed of the “faculty of free will” (Comm. I, 121). This “natural freedom” describes human beings whether they live in families, tribes, or

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large cities. The idea of the state of nature expresses the massively important notion that de fact0 power is not authority, that merely established subordination is not thereby justified subordination. The idea of natural liberty implies (or is equivalent to) the idea of the state of nature, which implies the idea of the social compact, that is, the idea that society, government, authority, and law exist as made (not natural) entities, to be best understood as contracted or consented to by those subject to them. But why do naturally free creatures create government, law, and so on, structures that limit their freedom? The state of nature/social compact story exists to make clear to mankind that “it is the sense of their weakness and imperfection that keeps mankind together,” however they may have originally come together. The state of nature story “demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement of society.”Thus Blackstone concludes: this is what we mean by the original contract of society . . .namely that the whole should protect all it’s [sic] parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any. (Comm. I, 47-48)

The state of nature and social contract is not historical truth-the slow growth via custom of the common law signifies clearly enough to Blackstone that the social compact story will never do as history. But they are moral and political philosophical truths when understood correctly (i.e., as a rational reconstruction of the source of legitimate authority). The Blackstonean modification of the social compact theory serves a further important function in his system of thought: just as it does not express the literal truth about the past, so, as a theory of legitimacy, it does not require us to reject and dissolve the existing social-political order. The contract is “understood and implied”; acceptance of the doctrine does not automatically entail an invitation to reject the existing order as insufficiently contracted into. That order can be reconceived so as to be seen as a product of the social compact. In Blackstone’s hands, the potentially revolutionary compact doctrine becomes compatible with a deeply preservative project. In treating the compact so paradoxically and so openly as a rational reconstruction rather than a literal truth, Blackstone develops an understanding

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of contractarianism that many readers have thought was always the real point and meaning of the doctrine as expressed by its inventors. Blackstone appears to be led to this modification (in rhetoric if not reality) of the classic contractarian philosophy by his project of reconciling the common law with modern political philosophy. His other most obvious modification of Lockean doctrine seems to have exactly the same purpose. When he speaks of the social contract he tends to use the phrase “original contract,” a phrase Locke used but once in his entire Two Treatises of Government (Comm.11, 97). Locke’s reluctance to use the phrase is in turn significant, because in the tradition of contractarian political thinking that preceded him, writers spoke uniformly of an original compact; Locke signaled his break with that political understanding when he insisted that no “original compact” could be binding on later generations. No point is served by affirming an “original compact,”for no father can bind his son. Locke moves away from the language of original compact because all are born free; all must therefore be understood to consent to the authority that binds them. The Lockean compact cannot be a once-for-all event in the distant past, but must be a “perpetual contract,” made and accepted by each individual as he or she comes to accept the legitimacy of political a ~ t h o r i t y . ~ ~ Although it would be plausible to assume that Blackstone means to return to pre-Lockean Whig conceptions by reviving pre-Lockean locutions, that would be a mistake. When Blackstone insists that the compact is but another way of speaking of the primary moral fact with political relevance, the “natural liberty of mankind,” he takes a position in essential agreement with Locke. Natural liberty belongs to all men; no set of ancestors may act to destroy, give away, or sell the natural liberty of their descendants. Each generation, each individual must renew or enter afresh the contractual order. Yet Blackstone does not mean that to be an invitation to each generation to dissolve or leave that order. In speaking of the contract as an “original contract” Blackstone does treat it as an already done thing. Blackstone’s contractarianism is no doubt paradoxical: the compact must be “understood and implied” both as an agreement to be made anew by each and as something already made and in place. The solution to the paradox, insofar as there can be one, lies in the other side of Blackstone’s larger project-the reinterpretation of common law so as to cohere with modern political philosophy. Blackstone’s concern with the potentially dissolving power of the social compact idea places him solidly in the company of his contemporaries David Hume and Edmund Burke.

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His strategy for responding to that threat shares much with both, but more solidly than the other two he retains loyalty to the social compact thesis. The key that unlocks Blackstone’s odd treatment of law lies in his overall characterization of the English legal system. England has a “singular frame and polity”; it is “a land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution” (Comm. I, 6 ) .At this point in his text Blackstone inserts a footnote reference to Montesquieu’s Spirit ofthe Laws (Book XI), the text that famously made that very claim about England. This liberty can “only be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest” (Comm. I, 6). The Montesquieuean standard to which Blackstone appeals is a slightly modified, but still recognizable, form of the Lockean standard for a legitimate polity: political power (and law) exists in order “to secure these rights”-rights of “all men” (meaning humankind), to use Jefferson’s formulation^.^^ Although the standard according to which the polity is judged and interpreted derives from modern political philosophy, Blackstone finds the English common law especially able to live up to that standard and especially compatible, strange to say, with the central concepts of that modern political philosophy. O n several occasions Blackstone digresses in order to contrast the English customary law with the civil or Roman law. The latter law, like the English law, “paid also a great regard to custom,” but did so only “in the times of it’s [sic] liberty” (Comm.I, 73). That is, Blackstone sees a link between liberty and customary law. Quoting the Roman jurist Julianus, Blackstone presents the key link the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind everybody. For where is the difference,whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly? (Comm. I, 73-74) Julianus’s principles held as long as Rome was free-recognition of customary law was part of that freedom-but faded away when Rome came to be ruled by an imperator. The maxims of Julianus came to be replaced by principles of a very different tenor: “Quod principii piacuit (egis babet vigorem” (“What pleases the prince has the force of law”) (Comm. I, 74).

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The Roman law (civil law), which stands as the main alternative in Europe to the common law, is not (as it came down from late imperial times) a law of liberty. It was by no means inevitable that England should remain under its indigenous customary laws rather than come under the civil laws. Indeed the common law “vigorouslywithstood the repeated attacks of the civil law; which established in the twelfth century a new Roman empire over most of the states on the continent” (Comm. I, 67). Those continental nations that succumbed to Roman law “have lost, and perhaps upon that account, their political liberties.” England, having resisted the pernicious civil law, “rather improved than debased” its “free constitution” (Comm. I, 67; see also I, 123).Blackstone thus has an answer to the difficult question Montesquieu implicitly posed regarding the history of liberty in Europe: How came it to be that England is the one and only place explicitly devoted to liberty?According to Blackstone it was because of the maintenance of the common law. As Blackstone reconceives the common law its goodness actually does not derive from its immemoriality per se, from its customary character as such, but rather and more ultimately from consent of the governed: “customs owe their original to common consent” (Comm. I, 77).33Customs are “established by consent” (Comm. I, 78). Authority or legitimacy derives ultimately from consent, a thought derived from the natural rights/social compact philosophers to whom Blackstone defers. The people may establish a sovereign with the power of legislation via their consent, but customary law is a means by which the people consent more immediately to the rules under which their social lives are conducted. Common law turns out to be a very decentralized and naturalized form of democracy. The common law then is surprisingly similar in ultimate origin and legitimacy to sovereign-made (statutory) law; in some respects it is superior, for as custom (i.e., as a way of conducting life that is in place), it is proved to be workable-because working. Thus Blackstone can endorse the common lawyers’ preference for the common law over parliamentary law, although he emphasizes more strongly than others the power of Parliament to supersede common law, even while wondering whether legislation is always wise (e.g., I, 89-90).The emphasis on sovereign power is the price Blackstone pays for bringing the common law into the orbit of social compact philosophy. Blackstone is also very careful to show that his account of common law, welling up from below, so to speak, is not incompatible with law be-

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ing imposed by the sovereign from on high. The common law did not arise quite so spontaneouslyas Blackstone usually would lead us to believe. He also takes pains to reveal the role of a series of kings, especially the ninth-century King Alfred the Great and his later successor Edward the Confessor, who did not so much legislate but compiled, made uniform, and established the common law throughout the kingdom (Comm. I, 65-66; IV, 403-5). The common law then does not possess legitimacy wholly independently of the (then) sovereign authority; like Hobbes’ philosopher in the Dialogue Blackstone points to a way to reconcile the common law, originated down in society as custom, with authority sitting atop society in the form of supreme power.34 It is not enough to harmonize the origin of common law with the true origin of law in order for Blackstone’s amalgam of the old law and the new philosophy to succeed. He also must show that the common law is in substance what the law of a free state should be. This part of his task is far larger than my time, space, or knowledge will allow me to execute. But a good indication of his general strategy lies in the overall organization of his Commentaries and most especially in the opening parts of Book I. Blackstone begins with an observation of very great significance: “the objects of the laws of England are so very numerous and extensive, that, in order to consider them with tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads” (Comm. I, 117).The law as Blackstone inherits it is a sprawling mess. In the first instance the law exists for the most part scattered in the various law reports, a series of case reports extending back hundreds of years, but lacking any principle of order other than chronology (Comm. I, 72-73). Writers on the law, even the incomparable Coke, hardly help; Blackstone emphasizes that “rich”and “valuable”as Coke’s Institutes are, they are “collected and heaped together from the ancient reports and year books” and are “greatly defective in method.” Coke’s work lacks “any systematical order” (Comm. I, 73). This unsystematized character of the law helps keep it a monopoly of the legal profession, for it guarantees that only a small band of the hardiest and most diligent students can begin to master the legal materials.35 Blackstone’s purpose of bringing the law to a wider audience requires that it be given more systematic expression and organization.This in turn requires Blackstone to find the categories in terms of which to organize it.36Whether he is self-conscious about it or not the categories in terms of which he presents the laws will shape the overall meaning of the law,

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for they produce the whole in terms of which the individual pieces now become parts. Perhaps Blackstone’sgreatest contribution to English law is just the fact that he organizes the law in this way-after him the law has a quite “systematicalcharacter” and the earlier legal writers are largely superseded, except for specialists in legal history. Especially in America, legal education for many years after will consist in mastering Bla~kstone.~’ The categories into which he organizes the law are taken from the political philosophy into which Blackstone is assimilating the common law. The first two books are about “rights,” the last two about “wrongs” (i.e., violations of rights). John Finnis makes the connection well when he observes: the whole structure of the Commentaries [shows] how the rights and wrongs which were the formal objects of English law substantially (though not perfectly or inevitably) correspondedto and protected the natural rights (but not natural duties) which properly (i.e., naturally) constituted its materialends or objectives. The first chapter of Book I explains this project in The treatment of rights is divided into rights of persons and rights of things, meaning property rights. The rights of persons in turn are of two sorts: absolute and relative. “By absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it.” Blackstone thus starts with a Lockean understanding of prepolitical right as well as a Lockean understanding of “the principal aim of society”-“to protect individuals in the enjoyment of those absolute rights . . . but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals” (Comm. I, 120). Relative rights “result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute” (Comm. I, 120-21). Blackstone proceeds to fit the laws into the niches supplied by his adoption of the Lockean story about the origins and ends of political community. H e organizes and explains the laws so as to show how they indeed do (or occasionally do not) fulfill their task within the Lockean

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paradigm. To take a particularly clear example: When Blackstone comes to treat of the relations of master and servant he begins by insisting that “pure and proper slavery does not, nay cannot, subsist in England.” Slavery is “repugnant to reason and the principle of natural law” (Comm. I, 411). On the basis of his natural rights-based rejection of slavery Blackstone emphatically derides the reasoning in favor of slavery in the Roman law and pronounces England under the Normans an “absolute . . . slavery” (Comm. IV, 411-13). Possession of philosophical principles of natural right allows Blackstone to pick though the otherwise conflicting record of historical precedent. It can never be emphasized enough that Blackstone’s thread though the mire of historical precedent and customary arrangements is natural right. History by itself cannot sort the authority of the various phenomena it contains (Comm. I, 123; IV, 428). To the degree he succeeded at this-and the reception of Blackstone suggests he had great success at it-he succeeded in producing just that amalgam I have argued was his chief goal, and which most strikingly characterized the political mentalit6 of Americans of the founding era. RECONSIDERING SOCIAL COMPACT Blackstone’s apparent ambivalence on the state of nature and thus on the social compact reflects the deepest aims of his project. It is not the least bit incoherent. He rejects the state of nature because it is nowhere close to the true historical account of humanity, and particularly not in accordance with the common law and its rooting in immemorial custom. Yet the custom that makes up the common law is validated via its conformity with central motifs of the very social contract theory in tension with which it seems to stand. That is to say, custom expresses “the consent of the governed,” the ground of legitimate authority within the social compact theory. Indeed, consent is just another way to speak of the social compact: Blackstone understands custom as itself a version of the social compact, an ongoing rather than once and for all discrete “original contract.” For Blackstone, then, there are in effect two social compacts: the fictional one in terms of which we must rightly understand the origin, nature, and limitations of governing authorities, and the customary law, much less a fiction because in real ways it incorporates consent. According to this combined notion of social compact, Blackstone interprets the ruling institutions of English political life so as to fit within the pages of

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Lockean theory. So, for example, when Blackstone treats of the monarch, we hear Locke and not Filmer (Comm. IV, 429).The king is the possessor of “the supreme executive power of those kingdoms,” that is, constitutes one part of the separated powers scheme Locke outlined and Montesquieu fleshed out. This executive power is “vested in a single person, by the general consent of the people, the evidence of general consent is long and immemorial usage” (Comm. I, 183).The king’s prerogatives derive as clearly from “consent of the people” as does the general investiture of the executive power in him (Comm. I, 230).The origin of prerogative in consent aiming at security of rights also establishes “the limitation of the king’s prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them within the consent of the people, on the one hand, or without, on the other, a violation of that original contract, which in all states impliedly, and in ours most expressly subsists between the prince and the subject” (Comm. I, 230). In these passages we see particularly clearly how Blackstone blends the two notions of social compact: the theoretical notion gives the main grounds and principles of both authority and substantive law, while the practical or customary version connects the compact to concrete and actual institutions and law. Because of the common law, the social compact is less a fiction in England than anywhere else, but at the same time, it is a truth everywhere. In a word, Lockean political philosophy supplies the criteria of validity and the terms for interpretation of the law. The philosophy has primacy because the fact of political facts for Blackstone is “natural liberty,” from which he, following Locke, derives the other elements of the social compact story. Blackstone thus helps us understand that part of the “American amalgam” that joined together Lockean political philosophy and pre-Lockean common law traditions; Blackstone also helps us think about the criticisms raised against social contract thinking, and thus implicitly against the American Founding. Blackstone partially concedes the first criticism: social compact theory is bad history. He concedes that it is a rational and implicit story about the origin of politics, but at the same time he develops a plausible way to see this story as the true story of English history via the relation between contract, consent, and custom. Blackstone knows, of course, that he is giving a creative or highly interpretive reading to English history, but given the ambiguities of the actual record and the need for some sort of organizing principles, Blackstone apparently thinks himself justified in reading the historical record through the lens supplied by Lockean theory. On neither version of social compact is Blackstone re-

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quired to endorse the claims about the state of nature that are so vehemently pronounced to be bad history. As a rational or moral reconstruction it is perfectly compatible with the biblical-Aristotelian history Blackstone sketches. As a rendition of the meaning of custom it is certainly compatible with claims of deep human sociability. Blackstone also supplies a response to the charge that social compact theory is bad political philosophy in that it fails to generate an adequate notion of obligation. In one sense he concedes the charge, for true obligation holds when one cannot do other than what one is obliged to do. We are truly obliged to the law of gravity, less truly to the laws of our nation. But Blackstone also shows us (as Hobbes and Locke earlier had done) that the social compact displays the inherent rationality of acceptance of political authority and law and the service they provide in that enterprise to which we are in the fullest and truest sense obliged-the pursuit of our happiness. By a kind of transitivity the obligation (in Blackstone’s sense) of the one migrates to the other. Admittedly, Blackstone is speaking of obligation in a somewhat idiosyncratic way, but he does supply an answer to the critics who fault contractarian theory on the issue of obligation. The charge that the natural righdsocial compact philosophy is indefensible philosophically because it is built on a faulty foundation (or any foundation) of nature is too large and complex to take on here. Blackstone clearly builds on the same foundation as his philosophic authorities, early modern philosophers like Locke and Montesquieu. Nonetheless, his effort to locate human laws within the context of broader theory of law does help highlight one aspect of this philosophy that is sometimes less clear in other thinkers of this tradition. Blackstone, it will be recalled, sets the human law within a schema of “law in general” within which the most universal laws are deterministic laws of nature. Human beings, as moral beings, do not entirely escape the pull of such universal law-the mechanism of pleasure and pain and the ordination to happiness are given in naturebut Blackstone goes out of his way to distinguish human laws, laws that can be disobeyed, from those laws of nature that cannot be disobeyed. Thus for Blackstone the point of departure for his legal and moral philosophy is not nature but human freedom, built on human rationality and free will. Although his job as an interpreter of the English law neither requires nor permits him to pursue these more philosophical issues very far, he indicates clearly enough that he understands the limits of nature as an explanatory category, whether nature be understood in the teleological manner characteristic of St. Germain’s Doctor, or in the mechanistic way

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characteristic of Hobbes. O n the characters of freedom, nature, happiness, and related matters, however, one must recognize the bounds of Blackstone’s ability to guide us and take his hints to look to the philosophers, most especially Locke, on whom he seems most to rely. So, without committing himself to the social and even biological impossibilities of the state of nature, or the mechanical and historical impossibilities of the social compact, Blackstone makes a powerfbl case for taking the rational reconstruction or, if you like, moral myth of the state of nature and social compact as the hndamental orienting thought for rational and just political life. And, even more amazingly, he combines in a plausible way his commitment to the compact and to the immemoriality of the customary law. An argument to the contrary, however, has been made by John Finnis, who finds that Blackstone’s account of law “leaves much to be desired.”39“The central problem” Finnis identifies seems to be the following: the state of nature, that is, “the constitution of man considered as an individual, in abstraction from all social (or at least all civil) relations,” is “the source of most of the rules of nature identified by Blackstone.” But “the notions of the state of nature as the source of natural rights seems unable to account for the data.” There are rights and corresponding duties recognized by Blackstone (and the common law) that cannot be traced to the state of nature, that is, to humanity understood “in abstraction from all social (or at least all civil) relation^."^^ Finnis fastens on the example of “reputation and good name”: Blackstone had affirmed those “among the natural individual rights upheld by English law,” but these “are inconceivable in abstraction from society.” Blackstone does not sufficiently note, and his theory cannot accommodate the fact, that “what is being discussed is a natural and social want: a desire to be well regarded by one’s fellows.”41Finnis believes that this and similar deficiencies point to the broader incapacity of state of nature/social compact philosophy to give an adequate account of morality and law. Finnis suggests that only a more deeply social theory, such as we find in Aristotle, Aquinas, or St. Germain, will successfully account for the data Blackstone cannot account for. Finnis’s critique then is a version of the Aristotelian critique I mentioned earlier, but since he directs his fire here explicitly at Blackstone it is worth taking a little more space to consider this specific version of the more general position we have already considered. Although Finnis does a lovely job of vindicating Blackstone against a largish array of misreadings that have bedeviled Blackstone through the years, he himself falls into a fairly serious misreading of Blackstone that leads not merely to

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these unwarranted criticisms but to some basic confusion about Blackstone’s position. Finnis misconceives both the relation between the state of nature and natural rights, and the true derivation (and thus content) of the law of nature in Blackstone, and by extension in modern natural rights political philosophy altogether. Finnis has it that “the state of nature [is] the source of natural rights.” This is quite inaccurate. Perhaps he means to say that natural rights or, as Blackstone sometimes calls them, absolute rights, are rights enjoyed or possessed in the state of nature, rights owed to nature and not to positive enactment. But all the rights, not only a right like that to a good reputation, are rights relative to other persons. All rights, despite holding in the theoretical state of nature, have reference to (in the sense of hold against) other persons and thus imply the existence of a plurality of individuals. Thus the right to life is a right that others not do harm to one in life or limb (Comm. I, 125-26). Harm to reputation is a harm of that sort, as Hobbes makes clear in his discussion of r e ~ u t a t i o n . ~ ~ Finnis is so far from correct in his formulation that nearly the reverse of what he says is in fact the case for Blackstone: the state of nature is not the source of natural rights but rather the natural rights are the source of the state of nature. A yet more accurate way to put it is to say that the idea of the state of nature is a way of expressing the fact of natural rights, and is in this sense an inference from natural rights. Blackstone makes this very clear in an important passage in his discussion of the “rights of persons”: “the absolute rights of man . . . are usually summed up in one general appellation, and denominated the natural liberty of mankind.” This “natural liberty” means to be capable of “acting as one thinks fit, without any restraint or control, unless by the law of nature.” That is, it means to be free of any subjection to human authority, which must be understood to be constituted when each person “gives up a part of his natural liberty,” producing “legal obedience and conformity” in place of “that wild and savage liberty,” a trade Blackstone, like Locke and Hobbes before him, believes to be well worth the “sacrifice”(Comm. I, 121, cf. I, 43). It should be clear from this account that natural liberty, the shorthand way to speak of the status of human beings as possessors of natural rights, is just the same thing as the state of nature. In the order of reasoning and being the primary fact is natural liberty, from which Blackstone infers the juridic conclusion that authority is not natural to mankind. Likewise Finnis does not understand Blackstone’s version of the law of nature. According to Finnis, “reflection on the state of nature is the

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source of most of the rules of natural law identified by Bla~kstone.”~~ But according to Blackstone natural law is that set of rules that allows a man to “pursue his own happiness,” under the prompting of “self-love, that universal principle of action” (Comm. I, 40-41). These rules, it turns out, encompass “those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil” (Comm. I, 40).44The laws of nature, then, include principles such as: “we should live honestly, should hurt nobody, and should render to every one it’s [sic] due” (Comm. I, 40). These are not principles formulated for a being conceived in isolation from others and inferred from that very isolation. Blackstone is perfectly aware of the social nature of human existence (witness his interpretation of the state of nature itself) and Finnis’s contention that somehow the “data”outstrip his explanations without his realizing it is not persuasive. Blackstone’s point is that the character of human life is such that we cannot achieve our own happiness, to which nature spontaneouslyimpels us, without recognizing and honoring the rules of justice, In this, once again, Blackstone is not in fact very far from his predecessor’s liberal theorists; even Hobbes insists on the existence of “laws of nature” requiring the doing of justice. Impressive as Blackstone’s achievementwas, and powerful as it was in shaping legal and political consciousness in both England and America, one must take note of a weak point, an Achilles’heel, in Blackstone’s system that ultimately proved fatal to it. Blackstone’s great achievement was to effect a synthesis of sorts between the social compact philosophy and the common law, a synthesis both novel and difficult to achieve. That synthesis depended on two strategies above all. first, the formal integration of common law into social compact theory via the interpretation of custom as consent (i.e., as a form of ongoing social compact); and, second, the substantive reinterpretation of the common law and inherited constitution as exemplars of the rational order as limned in Lockean-Montesquieuean political philosophy. This dual movement accounted for a feature of Blackstone’s thought that Herbert Storing emphasized some years ago in a truly fine essay on the English jurist: Blackstone managed to tame or civilize the rationalist, Enlightenment philosophy, housebreak it so to speak, by taking the radical edges off the compact philosophy and vindicating ongoing English practice in terms of that philosophy.45The result of the Blackstonean synthesis was a very conservative version of modern political philosophy, a version that perforce had to endorse as rational and acceptable many inheritances from the past that were in fact derived from

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a very different past order, built on different premises and aiming in different directions. In the American context, for instance, it is natural to think of the issue of succession to property. Following the feudal premises buried in the common law, Blackstone rationalizes the practice of primogeniture (see e.g., IV, 214,406-7). In America, and later in Britain itself, however, the practice of primogeniture came under intense pressure because it was seen to be incompatible with both republican political life and the true nature of property as developed in modern philosophy and as suited to modern political economy.46 Blackstone had suggested that the formal convergence of social compact philosophy and the common law on the site of consent vouched for or even guaranteed the substantive coherence of these two political-legal systems as well. Reflection reveals that cannot be so: India, China, feudal France, and any number of other political communities that Blackstone could not hesitate to pronounce considerably deficient compared to the regime of liberty established in England were themselves built on a foundation of custom. His attempt to blame the spread of Roman law for the descent from liberty elsewhere in Europe does not sufficiently explain the broader phenomena, as the examples of India and China indicate full well. Custom per se does not guarantee the prevalence of a free order. When all is said and done, then, Blackstone’s amalgam required either some broader scheme of a necessity guiding the convergence of custom and liberty, such as Hegel later attempted to supply, or a great act of interpretative will and intelligence to bring the formal and substantive sides of the two elements of the synthesis into harm~ny.~’ The result, as I have already suggested, was a very conservative, but more to the point, a strained and in many cases implausible synthesis. Blackstone’s amalgam was at first very welcome and certainly effective: I have no doubt that it served, as did the very similar efforts to synthesize modern (Lockean) political philosophy and Protestantism undertaken by theologians like Elisha Williams, as a bridge that allowed eighteenth-century Anglo Americans to cross over into modernity. But once there, and over time, the forced and implausible elements of the synthesis became visible and turned into sources of intellectual and political strain. Some of the efforts to reduce the strain were piecemeal, for example,Thomas Jefferson’s efforts to revise the laws of primogeniture and entail in Virginia. Others were more largescale: for example, the same Thomas Jefferson’s eventual denunciation of Blackstone as, in effect, a Tory apologist (an unfair charge), and, probably most significant for the hture of legal practice and political philosophy,

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Jeremy Bentham’s ferocious attack o n Blackstone in his Fragments on Government.

NOTES 1. “Social Compact, Common Law, and the American Amalgam: The Contribution of William Blackstone” appears as chapter 9 in Launching Liberalism: On Lockean Political Philosophy, by Michael Zuckert. Copyright 2002 by the University Press of Kansas. Used by permission of the publisher. 2. For the Declaration as a statement of social contract theory, see Zuckert, The Natural Rights Republic (Notre Dame, Ind.: University of Notre Dame Press, 1996), 17-31. 3. For a thoughtful and concise comparison of eighteenth- and twentieth-century contractarian thinking, see John Dunn, “Contractualism”in his The History ofPolitical Theory and Other Essays (Cambridge: Cambridge University Press, 1996), 39-65. 4. Willmoore Kendall, “The Social Contract: the Ultimate Issue Between Liberalism and Conservatism,” in Kendall Contra Mundum, ed. Nellie Kendall (New Rochelle, N.Y.: Arlington House, 1971), 96-97. 5. See Amitai Etzioni, ed., Rights and the Common Good (New York: St. Martin’s Press, 1995). 6. References to Blackstoneb Commentaries on the Laws of England will be made parenthetically in the text, abbreviated as Comm., and are based on the first edition (Oxford: Clarendon Press, 1765-1769). 7. Donald Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988), 143. More standard kinds of evidence on Blackstone’s presence in America during the founding era are in Edward Convin, The “HigherLaw” Background ofAmerican ConstitutionalLaw (Ithaca, N.Y.: Cornell University Press, 1955), 84-85 and in Dennis R. Nolan, “Sir William Blackstone and the New American Republic: A Study of Intellectual Impact,” New York University Law Review 51 (1976): 731-68. 8. Nolan, “Sir William Blackstone,” 759. 9. Zuckert, Natural Rights Republic, 7. 10. Zuckert, “Natural Rights in the American Revolution: The American Amalgam,” in Human Rigfits and Revolutions, eds. Jeffrey Wasserstrom, Lynn Hunt, and Marilynn Young (Lanham, Md.: Rowman & Littlefield, ZOOO), 59-76. An attempt to trace the legal elements of the “amalgam”and relate it to Blackstone is Beverly Zweibel, How Blackstone Lost the Colonies (New York Garland Publishing, 1990). 11. James Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes and the origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992), 163; cf. 175.

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12. Morton Honvitz, The Transformation ofAmerican Law 1780-1860 (Cambridge, Mass.: Harvard University Press, 1977); also for example Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983). Compare Zweibel, Blackstone, 4 “Americans maintained a sense of legal continuity between themselves and the principles of the ancient constitution.” 13. John Finnis, “Blackstone’sTheoretical Intentions,” Natural Law Forum 12 (1967): 163; see also 169-74’175,183. See more generally, Richard A. Cosgrove, Scholars ofthe Law (New York New York University Press, 1996),22,29. 14. Finnis, “Blackstone’sIntentions,” 169-70. 15. A good brief sketch of the circumstances of Blackstone’s offering his law lectures is in Nolan, “Sir William Blackstone,” 732-36. 16. Christopher St. Germain, Doctor and Student, or Dialogues Between a Doctor of Divinity and a Student in the Laws of England Containing the Ground of Those Laws Together with Questions and Cases Concerning the Equity ThereoJ;ed. William Muchall (Cincinnati, Ohio: Robert Clarke, 1874).References to this work will be made parenthetically in the text, under the abbreviation DS. 17. O n the eternal law, compare St. Germain, Doctor and Student I, i, to St. Thomas Aquinas, Summa Theologiae 1-11, Q 9 3 A.1-2; on natural law, see Doctor and Student I, ii, and Summa TheoZogiae 1-11, Q 9 l A.2, and Q94, A.l, 5,6; on the law of God, see Doctor and Student I, iii, and Summa Theologiae 1-11, Q91, A.4; on human law, see Doctor and Student I, iv, and Summa Theologiae I11, Q95, esp. A.3. Although I do not dwell on the point, there are serious questions to be raised as to whether the Doctor presents an accurate version of Thomistic legal philosophy. Complicating matters is the subtle dialectical interplay between the Doctor and the Student, indicating that St. Germain’s own position is not to be confused with either one. Conversations with my colleague John Roos have helped clarify the questionableness of some of the Doctor’s claims from a Thomistic perspective. An explicit examination of Thomas and St. Germain would surely repay someone’s attention, but that task is not undertaken here. 18. St. Germain, Doctor and Student, I, i, 3. See also Summa Theologiae 1-11, Q 9 , A.3. 19. Finnis (“Blackstone’s Intentions,” 175) comments that Blackstone has “poorly explained” the difference between the universal laws and human laws. I would rather say “briefly” than poorly. 20. Blackstone is quite explicit in rejecting Aristotle influenced philosophy: see IV, 410-11. 21. St. Germain, Doctor and Student, I, ii. See John Locke, Second Treatise, chapter 11, paragraph 136. 22. O n St. Germain and courts of equity, see William Holdsworth, Some Makers ofEnglish Law (Cambridge: Cambridge University Press, 1938),96-98. 23. John Locke, Essay Concerning Human Understanding,11,xxi.

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24. For discussion, see Zuckert, Natural Rights and the New Republicanism (Princeton, N.J.: Princeton University Press, 1994), chaps. 7-9. 25. See Locke, Second Treatise,chap. 11. See also Convin, “HigherLaw” Background, 85. 26. Stoner, Common Law, 170-71. 27. See Stoner, Common Law: “the contrast between Hobbesian science and common law is . . .thoroughgoing” (133). He too asks, how do (‘suchopposite understandings of law and government fit together in the constitutionalism of the American framers?” See also Cosgrove, Scholars, 31,32,35. 28. Convin says of Blackstone: “undismayed in the presence of the palpable contradictions in his pages, . . he is the very exemplar and model of legalistic and judicial obscurantism.” (“Higher Law” Background, 85). Also see Nolan, “Sir William Blackstone,” 742, on the “mClange” Blackstone produced by borrowing indiscriminately from various schools of thought. 29. Although my themes are different I very much agree with James Stoner’s judgment: Blackstone “aims to perfect liberal doctrine as he reforms English law, beginning from liberal principles and using common law practice to develop and correct them” (Common Law, 163; also see 165). 30. Stoner is one of the few to notice this oddity of Blackstone’s discussion, but even he makes very little of it (CommonLaw, 168). 31. For more complete discussion, see Zuckert, Natural Rights and New Republicanism. See Locke, Second Treatise,paragraphs 116, 118, 122, 171-72. 32. O n Montesquieu and Locke, see Zuckert, “Natural Law, Natural Rights, and Classical Liberalism: O n Montesquieu’s Critique of Hobbes,” in NaturalLaw and Modern Moral Philosophy, eds. Ellen F. Paul, Fred D. Miller, and Jeffrey Paul (Cambridge: Cambridge University Press, 2001), 247-50. 33. For an indication of how different the traditional understanding of the authority of the common law was, see J. G. A. Pocock‘s classic discussion in TheAncient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957). 34. Thomas Hobbes, A Dialogue Between a Philosopher and a Student ofthe Common Laws ofEngland (Chicago: University of Chicago Press, 1971), 59. 35. See Nolan, “Sir William Blackstone,” 737. 36. Consider Alan Watson, “The Structure of Blackstone’s Commentaries,”Yale Law Journal 97 (1988): 796: “The common law itself has no structure; accordingly Blackstone was obliged to draw the structure of his treatise from some source external to the common law.” Watson’s own tracing of the structure back to Justinian is not very persuasive for reasons he himself emphasizes in his essay. Blackstone had been very critical of John Cowell, who had written a treatise in English on the model of Justinian’s Institutes. Watson quotes Blackstone as follows on Cowell’s enterprise: “Dr. Cowell hath indeed endeavoured to reduce the Law of England, in his Latin Institutions, to the Model of those of Justinian: And we cannot be surprised, that so forced and unnatural a contrivance should be lame

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and defective in its execution” (“Structure,” 799). This does not sound like someone who is about to follow Justinian’s model himself. Watson also fails to notice Blackstone’s vehement criticism of the Roman law as discussed in the text above. 37. Nolan, “Sir William Blackstone,” 759-68. 38. Finnis, “Blackstone’s Intentions,” 176; cf. esp. 177, 179. 39. Finnis, “Blackstone’s Intentions,” 164. 40. Finnis, “Blackstone’s Intentions,” 179-80. 41. Finnis, “Blackstone’s Intentions,” 180. 42. See Hobbes, Lewiathan, chaps. 10-11. 43. Finnis, “Blackstone’s Intentions,” 179. 44. See Montesquieu, The Spirit ofthe Laws, Part I, Book 1. 45. Herbert J. Storing, “William Blackstone,” in Toward a More Perjct Union: Writings ofHerbert J. Storing, ed. Joseph M. Bessette (Washington, D.C.: AEI Press, 1995), 223-35. 46. The conservatism of Blackstone’s synthesis has been the focus of much post-New Deal commentary on Blackstone in America. It is the main theme, for example, of Daniel Boorstin’s disappointing study, The Mysterious Science o f l a w (Cambridge, Mass.: Harvard University Press, 1941)’ 6,11,18,19,25,30,45-53, 119, 139, 166-86. See also Duncan Kennedy, “The Structure of Blackstone’s Commentaries,” Buflalo Law Rewiew 28 (Fall 1979): 205-382; H . L. A. Hart, “Blackstone’s Use of the Law of Nature,” South Apican Law Rewiew (1956): 169-74; Cosgrove, Scholars, 39-42. 47. In order to treat adequately the convergence of the common law and liberty in Blackstone, one must consider carefully his sketch of “The Rise, Progress, and Gradual Improvements, of the Laws of England” at the very end of his Commentaries. That sketch does not suffice for its purpose because Blackstone is caught between two different theories about the history of law and liberty. O n the one hand, that history is the story of the progressive restoration of the preNorman and pre-feudal law prevalent on the island before the conquest. O n the other hand, it is the story of secular progress: “the fundamental maxims and rules of law, which regard the rights of persons, and the rights of things, the private injuries that may be offered to both, and the crimes which affect the public, have been and are every day improving, and are now fraught with the accumulating wisdom of the ages” (Comm. IV, 435). The first part of Blackstone’s theory is a quite traditional one in the pages of common law writers. Consider Stoner’s discussion of the use of the argument by Coke and Hale (CommonLaw, 132).

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Hume, Historical Inheritance, and the Problem of Founding Bradley C. S. Watson

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do a great disservice to the American Founding and to the Founders if we underestimate the importance of either reason or custom and tradition to the founding moment. The rational dictates of Lockean social compact theory clearly occupy a prominent place in the thought of the Founders. Yet so does a concern for tradition and customary institutions and attachments. The founding betrays a certain form of Enlightenment liberalism, as it betrays a genuine conservatism-both in its theory and in the moderate politics of its outcome. In this chapter I argue that the Founders intentionally melded conclusions of reason with institutions and ideas of a traditionalist or customary cast-institutions and ideas whose strength and direction would be provided by prejudice and prescription. The relationship of reason to custom is a complex topic, but it can be accessed in an important way by reconsidering the relationship of David Hume’s thought to that of the Founders and the founding. The founding, we will suggest, was at least as much a product of careful reflection on Hume as on Locke. It was, in other words, an attempt to implement social compact theory while at the same time recognizing its natural limits. HUME AND THE IMPOTENCE OF REASON Hume, like many radical skeptics,is Janus faced. He wishes to proclaim, on one hand, the death of natural right and the virtual impotence of reason, while maintaining, on the other, that his account of the political things is the correct one. His skeptical face leads him to conclude, famously, that all 75

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causal reasoning is nothing but the effect of custom. Indeed, ‘‘AUinferences from experience . . .are the effects of custom, not reasoning. Custom, then, is that great guide to human life. It is that principle alone, which renders experience useful to us. . . .Without the influence of custom, we should be entirely ignorant of every matter of fact, beyond what is immediately present to the memory and senses.”l Cause and effect are but empty impressions stemming from our habitual mental associations. The principle of causation is vital to Hume because it is that which allows us to move beyond our perception-the sum total of the mind’s contents derived from sensory experiences of the world. Our perceptions are of two sorts: impressions and ideas. Impressions are those things imprinted on our minds from immediate sense experience, emotions, or passions. Everything we know is perception: our sense impressions consist of more lively impressions, our ideas of less lively ones. In other words, all ideas are derivative from impressions; they are but faded impressionsabstract reflections on that which is not immediately presented by our senses or sensibility. The key difference between our sense impressions and ideas is quantitative. Says Hume: Every one will readily allow, that there is a considerable difference between the perceptions of the mind, when a man feels the pain of excessive heat, or the pleasure of moderate warmth, and when he afterwards recalls to his memory this sensation, or anticipates it by his imagination. These faculties may mimic or copy the perceptions of the senses; but they never can entirely reach the force and vivacity of the original sentiment?

If experience is so vital to all our reasoning capacities, we can say almost

nothing about the nature or functioning of the external world without imposing our own order upon it. And this is what we do through what we understand as the principle of causation. We can infer that which is beyond immediate or remembered experience only through the assumption-the unreasonable faith-that the future w ill resemble the past which we have experienced innumerable times. We “know” a billiard ball moving and striking another will in turn move the other in a certain direction because we have seen it or something like it so many times before. And this knowledge is not really knowledge at all, but a habit of minda linking of two events that are not in themselves linked. It is this creation of a reality that allows us to function, but it does not reflect the truth of the external world. The future is not logically or philosophically obliged to

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follow the past, rather the human mind through habit assumes that it will. It is this, and nothing more, that is causation. Our idea of causation is derived from an impression, but the idea is not derivative from the noumenal world, but from our own feelings-our need for order-which is experienced by and in our own minds. This, as we have said, is one sense in which Hume uses the notion of custom. This notion clearly has epistemological import, but it also has moral-political import. One cannot understand the latter without having some grasp of the former. For Hume, morality is a conclusion of sentiment, not reason. When we act, we do so for the sake of pleasure or avoidance of pain-utility, broadly construed. And that to which we are drawn, we deem moral. Virtues are not good in themselves, and vices not bad; they depend on our approbation and disapprobation, respectively. As causation is not an attribute of things in themselves, so good and evil are not attributes of human acts in themselves. Our need for order is as great in the moral-political as in the natural world. In a proto-postmodernist stance, Hume argues: As no party, in the present age, can well support itself, without a philo-

sophical or speculative system of principles, annexed to its political or practical one; we accordingly find, that each of the factions . . . has reared up a fabric of the former kind, in order to protect and cover that scheme of actions, which it pursue^.^

However, Hume’s understanding must be qualified and differentiated from contemporary and conventional academic views. Hume makes clear in A Treatise of Human Nature, and routinely reiterates in one form and one place or another, that [W]e every day meet with persons who are in a different situation from ourselves, and who could never converse with us on any reasonable terms, were we to remain constantly in that situation and point of view which is peculiar to us. The intercourse of sentiments, therefore, in society and conversation makes us form some general unalterable standard by which we may approve or disapprove of characters and

manner^.^

Hume wants to claim that while we approve that which is pleasurable, we do not approve it because it is pleasurable. To do so would lead to a form of moral relativism that Hume seeks to deny. Approbation of virtue and the pleasure principle are as one-we are constituted such that the virtues

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are pleasant to us and we therefore incline to pursue them. As Hume notes at the outset of his Enquiry Concerning the Principles ofMorals, The final sentence, it is probable, which pronounces characters and actions amiable or odious, praiseworthy or blamable; that which stamps on them the mark of honour or infamy, approbation or censure; that which renders morality an active principle and constitutes virtue our happiness, and vice our misery-it is probable, I say, that this final sentence depends on some internal sense or feeling which nature has made universal in the whole specie^.^

In addition, our approval falls to those things that lead-immediately or eventually-to human pleasure, as opposed to our own pleasure. These things include, but are not limited to, the virtues that are usefil to us as individuals (for example, prudence). Included also are virtues that are useful to others (for example, justice). The natural principle of sympathy transmits the pleasures and pains of others directly to us as impressions, and ensures that we are not fundamentally self-regarding. Sympathy operates in an essentially mechanical way that does not rely on a willed benevolence; it is not compassion so much as the effect produced in us by the state of another. As the term “sympathy” is used in physics to denote the capacity or characteristics of certain inanimate objects that attract or influence one another, so it takes on a parallel meaning in the realm of morals. The minds of all men are similar in their feelings and operations; nor can any one be actuated by any affection of which all others are not in some degree susceptible. As in strings equally wound up the motion of one communicates itself to the rest, so all the affections readily pass from one person to another, and beget correspondent movements in every human creature. When I see the efects of passion in the voice and gesture of any person, my mind immediately passes from these effects to their causes, and forms such a lively idea of the passion as is presently converted into the passion itself. In like manner, when I perceive the causes of any emotion, my mind is conveyed to the effects, and is actuated with a like emotion:

Self-interest is not at the root of Hume’s moral theory-as Hume himself believes it to be at the root of Hobbes’ or Locke’s. Hume’s moral skepticism does not lead him to a basically asocial ethics or an individualist ethics that must be modified and theoretically weakened to take ac-

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count of the obvious human tendency toward attachment to or solidarity with others. Morality is rooted in passion-a set of moral sentiments. But the moral sentiments of mankind, while they are not dictates of reason, do derive from stimuli that transcend the individual. This is not to say that universal principles are easy to induce from moral-political life, however. Indeed, “all general maxims in politics ought to be established with great caution . . . irregular and extraordinary appearances are frequently discovered in the moral, as well as in the physical ~ o r l d . Nonetheless, ”~ we can often see, ex post facto, the relationship between actual events and “principle”-that is, deeply felt assurance as to how and what the moral-political things are. We can often account for “extraordinary appearances” in the moral world “after they happen, from springs and principles, of which every one has, within himself, or from observation, the strongest assurance and conviction: But it is often fully as impossible for human prudence, before-hand, to foresee and foretel them.”8 One might say that it is equally impossible to foretell the weather two weeks in advance, yet this in no way implies that we cannot account for it on scientific principles after we observe it. In some of the most memorable of Hume’s many memorable lines, he writes: Morals and criticism are not so properly objects of the understanding as of taste and sentiment. Beauty, whether moral or natural, is felt, more properly than perceived. Or if we reason concerning it, and endeavour to fm its standard, we regard a new fact, to wit, the general taste of mankind, or some such fact, which may be the object of reasoning and enquiry. When we run over libraries, persuaded of these principles, what havoc must we make? If we take in our hand any volume; of divinity or school metaphysics, for instance; let us ask, Does it contain any abstract reasoning concerning guantity or number? No. Does it contain any experimental reasoning concerning matter offact and existence? No. Commit it then to the flames: For it can contain nothing but sophistry and illu-

ion.^

In sum, we can say Hume’s epistemological and moral-political intent seems to be a liberation from theological or metaphysical absolutes. This comes to light in his Enquiry Concerning Human Understanding where he juxtaposes reason, science, and philosophy (involving relations of ideas, or “pure”ideas involving quantification, and matters of fact) against morality and politics. Morality can be reduced to a science insofar as the passions,

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and only the passions, are the basis of moral-political life. Even God himself is a faded impression of what we consider good. The idea of God, as meaning an infinitely intelligent, wise, and good Being arises from reflecting on the operations of our own mind, and augmenting, without limit, those qualities of goodness and wisdom. We may prosecute this inquiry to what length we please; where we shall always find, that every idea which we examine is copied from a similar impression.” In Hume’s epistemology, there is no room for true or false, only belief versus fiction. Hume wants a world of modern science, concerned primarily with basic, empirical data in the form of impressions-those that can be quantified taking on greater certainty and even reality than mordpolitical phenomena as traditionally construed. One can therefore argue that in Hume there is a sense-in nascent form-that anything is possible in the realm of morals. However, we should remind ourselves that, contrary to Nietzsche or Dostoyevsky, Hume finds no reason for deill overcome despair through the princispair. Man’s passions for order w ple of custom or habit. As Hume famously remarks in his Treatise, while it may not be contrary to reason to prefer destruction of the world to scratching one’s finger, it is contrary to the passions. This is an optimistic way of saying that the dangers of life and the fears that follow from them can be overcome through interest.

HISTORICAL INHERITANCE AND THE SOCIAL COMPACT

It is therefore prerational interest or utility-and

not social compact strictly speaking-that is the basis for just government. Passion, not reason, is the foundation of social order. Savage man in fact is drawn into social intercourse through sexual intercourse, not compact and the calculations necessitated by it. Men are insensible even to the advantages of society in terms of “force, ability, and security” until they are first drawn together by “that natural appetite betwixt the sexes.”” Certain natural or social virtues cement this social order, including sympathy and benevolence. For Hume, there is no state of nature. There is thus no movement of men to civil society via contractual relations. If there were a social “compact,” it could mean nothing more than people voluntarily coalescing-

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because of their basic equality-into tribal groups for reasons of interest.12 Consent must be present, but only in a rudimentary, prerational form: it does not lead to “state” or %.ociety” or even “compact” in the full-blown sense of these terms. But philosophers, who have embraced a party (if that be not a contradiction in terms) are not contented with these concessions. They assert, not only that government in its earliest infancy arose from consent or the voluntary acquiescence of the people; but also, that, even at present, when it has attained fill maturity, it rests on no other f0undati0n.l~

Rather, according to Hume, government exists largely to enforce contractual obligations (those that serve our interests); it cannot therefore depend on them. As John Gray has observed, “It was Hume’s insight that society could not be founded on a contract or promise, since contracting and promising are themselves already social practices. . . . Where it exists or can be had, agreement is an incident in on-going practice, and not a foundation for practice.”14Further confounding the compact theory is the historical record, which indicates governments or regimes in fact begin in bloodshed, not mutual agreement. Force, not consultation, is the hallmark of founding. But though this progress of human affairs may appear certain and inevitable, and though the support which allegiance brings to justice, be founded on obvious principles of human nature, it cannot be expected that men should beforehand be able to discover them, or foresee their operation. Government commences more casually and more imperfectly. It is probable, that the first ascendant of one man over multitudes begun during a state of war; where the superiority of courage and of genius discovers itself most visibly, where unanimity and concert are most requisite, and where the pernicious effects of disorder are most sensibly felt.15

Finally, people do not actually think of themselves as owing allegiance to the sovereign because of consent, but rather because of birthin other words, historical happenstance. “The long continuance of that state, an incident common among savage tribes, enured the people to submission; and if the chieftain possessed as much equity as prudence and valour, he became, even during peace, the arbiter of all differences, and could gradually, by a mixture of force and consent, establish his authority.”16 Indeed, “Man, born in a family, is compelled to maintain society,

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from necessity, from natural inclination, and from habit.”” In short, “Obedience or subjection becomes so familiar, that most men never make any enquiry about its origin or cause, more than about the principle of gravity.”18 For Hume, the stability of this social order is in turn opposed by the possessive individualism that is one aspect of self-love. Slowly, gradually, through habits of aversion engendered by bitter experience, man comes to realize the necessity of enforcing at law restraint from the property of others. This is the first law of nature.19The second law of nature-also, ironically, arising through custom or habitual experience rather than natureis to allow the transfer of property via consent. Private contractual relations are to be encouraged not as a result of a priori reasoning about rights or justice, but as a result of our aversion to instability and conflict (i.e., the pain or displeasure that would result from settling property disputes any other way). The third law of nature is the obligation to keep promises. Through experience men come to know the utility of solemn obligations for themselves and others and voluntarily submit themselves to penalties for the violation of them. Thus justice arises from utility and self-interest. Morality-including moral blame-in turn arises when we sympathize with others (and with the public interest) who have been treated unjustly. Sympathy arises when we are exposed to injustice. So self-interest and natural sympathy together create our moral categories over the course of time. To say an individual action or practice is “good” is to presuppose the existence of the practice or institution of which the action is a reflection and of which we already approve. Human actions are not justified on the basis of natural right, natural law, or natural rights, but on the basis of historically situated practices. Human creation, albeit noncontractual creation, is the root of the concepts of justice and injustice. Because men also prefer immediate to long-term greater benefit, government is by necessity to restrain the former and promote the latter. The enforcement of contracts and the protection of the rights of property become chief ends of government, which is run by a class of men who have an immediate interest in such things. Our self-interest and sympathetic sense of obligation to our fellow men together provide us the motive and moral duty to obey the rules of justice. Observance of neutral (or at least impersonal) rules of governance is an “artificialvirtue” for Hume, one of that class of virtues or moral duties that manifest themselves not immediately from natural instinct, but

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from reflection on the nature of man’s estate and the danger of throwing off salutary shackles. Included among these virtues are also justicemeaning regard for others’ property-and fidelity-meaning the keeping of promises.20They become virtues only in the face of the necessary artifices of politics. Overall social utility will be maximized by a complex web of individual practices, the rationality of which may not be apparent in particular cases. But, as a whole, these practices constitute a scheme of social life that is indispensable because it channels the passions. To identify our obligations, “we consider the necessities of human society, and the impossibility of supporting it, if these duties were neglected.”21 In his emphasis on the indissoluble link between virtue and utility, Hume’s is not a virtue ethics in the Aristotelian sense (quite apart from the very different catalog of virtues Hume describes). A public or private virtue ethics is not, strictly speaking, required as long as good institutions moderate and control the passions. Whether these institutions exist within the framework of monarchy, aristocracy, or polity is not of central concern to Hume. The result of historical praxis is that no universal truths in politics can be ascertained independent of experience. Political life constructs its own reality much as human thought imposes order on manifold sensations. [Tlhough an appeal to general opinion may justly, in the speculative sciences . . . be deemed unfair and inconclusive, yet in all questions with regard to morals, as well as criticism, there is really no other standard. . . . And nothing is clearer proof, that a [social compact] theory of this kind is erroneous, than to find, that it leads to paradoxes, repugnant to the common sentiments of mankind, and to the practice and opinion of all nations and ages. The doctrine, which founds all lawful government on an original contract, or consent of the people, is plainly of this kind; nor has the most noted of its partizans, in prosecution of it, scrupled to affirm, that absolute monarchy is inconsistent with civilsociety, and so can be noform of civilgovernment at all; and that the supreme power in a state cannot takeporn any man, by taxes and impositions, any part of his property, without his own consent or that of his representatives. What authority any moral reasoning can have, which leads into opinions so wide of the general practice of mankind . . . it is easy to determine. . . . New discoveries are not to be expected in these matters. If scarce any man, till very lately, ever imagined that government was founded on compact, it is certain, that it cannot, in general, have any such foundation.22

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We should note that Hume is the first philosopher to write a history, because he wanted to see the outline of Englishmen’s structuring of their sense impressions. This, he believed, was the way to understand a people and their social institutions, rather than through universals independent of empirical sense data. Basic sociopolitical arrangements are therefore artifi~ial,2~ even though based on what Hume calls laws of nature. This is so to the extent reahty has no objective structure; alternatively,beings do not have essences seeking to be realized through action. Hobbes had rejected the notion of an objective structure or order to the universe. For him, the natural world is amoral. God may have intended that humanity survive, but he intended little else. To the extent there is a “natural”law, it consists simply in those rules that arise from the contractual agreements of rights-bearing individuals. John Locke, in mediating and moderating Hobbes’ thought, understands the law of nature to be that guide to human practical reason (involving man’s dealing with others) derived from and existing in man’s natural state, or his human nature. There is thus a sociability in Locke that is absent in Hobbes-a limited sense that man is indeed, in the end, and in the beginning, a political animal. But for Locke, as for Hobbes, a social compact is necessary to create the skeletal structure of political life. It is this social construction stemming from social compact that Hume is profoundly skeptical of. There is for Hume a radically destabilizing, innovative tendency in Whig social compact theory. The unbridled enthusiasm of choice is as inappropriate to a decent politics as is authoritative superstition stemming from traditional metaphysics. In attacking social compact, Hume therefore paradoxically blends a radical ontological and epistemological skepticism with a basically conservative love for spontaneous order. For Hume: The essential feature of a contractual arrangement is that it involves choosing whether or not to enter into the arrangement: but a choice that is unknown to a chooser is not a choice. It seems impossible to identi@ any contract by virtue of which any group living under a particular government owes allegiance to that government . . . even if there had been some contract in the past, it would not carry authority beyond the original contractor^.^^

To claim the social obligations we are born into as ours to undo has for Hume a tyrannical tendency. Humean individuals have not so much rights, but interests in the administration of justice. As people perceive

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their own and the public interest, so they perceive their obligation to obey. Habitual ways of thinking cannot be uprooted without cost. Our very notions of the just and unjust, of good and evil, must be rooted in patterns of behavior. The legitimacy of government itself is a function of opinions created by the length of possession of power, present possession of power, conquest, principles of succession, and positive laws. Sovereignty apart from historical circumstance is meaningless. The general principles of politics teach us that political action must start from an understanding of the particular political conditions to which history has brought us. Hume’s political theory is, in other words, an explanation of why political theorizing in abstraction from historical conditions is futile and often dangerous.25

HUME AND THE AMERICAN FOUNDING This leads us to the American Founding. It is of course known that Hume-like Locke, Montesquieu, and many others-had decided influence on the Founders’ thinking. We know that John Adams, Benjamin Franklin, Alexander Hamilton, Thomas Jefferson, and James Madison were acquainted with Hume’s thought (Franklin being acquainted with Hume himself). In 1787 Madison either read or reread Hume’s essay “On the Idea of a Perfect Commonwealth.” More telling than these bits of historical trivia, Hume’s understanding of the moral and political things manifests itself decisively in the thought of the Founders. In the case of Madison, his own studies of history and his experience of Virginia politics have led him to conclude, along with Hume, that society naturally articulates itself into myriad interests over the course of time. This raised the question of what to do about these interests-ignore them, eliminate them, or utilize them and concomitantly moderate their effects? Hume’s notion that large republics could break the currents of popular sentiments and thereby moderate the effects of faction more successfully than small ones was given its most famous expression by Madison in The FederaZist #lo. Hume begins his uncharacteristically speculative essay “Idea of a Perfect Commonwealth” with an admonition that any “established government has an infinite advantage, by that very circumstance of being established. . . . [To] try experiments merely upon the credit of supposed argument and philosophy, can never be the part of a wise magistrate, who will

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bear a reverence to what carries the marks of age.”26He then, paradoxically, attacks the conventional wisdom-and historical insight-of Montesquieu to the effect that republican government over an extensive area is impossible. “In a large government, which is modelled with masterly skill, there is compass and room enough to refine the democracy, fi-om the lower people . . .to the higher magistrates, who direct all the movements. At the same time, the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public intere ~ t .This ” ~ ~was a notion that Madison deployed and briiantly expanded in an American context to overcome Montesquieu’s objection to the possibility of comity in a large republic of diverse The Founders’ new science of politics was, ironically, a derivative from the philosopher who largely abhorred that which is new or experimental in the human sciences. Although created equal, the course of life and events gives each of us unique interests, opinions, and passions, which are a potential source of tyranny, but, if multiplied, a means to control tyranny. Private rights and the public good could be promoted, as it were, naturally, by the forces of society working upon themselves. “Mixed government” would thus, strictly speaking, be unnecessary. For Humean reasons, no monarchical principle was required to leaven Lockean individualism. In fact, one can say that a central concern of the Founders was to make the liberty flowing from social compact reasonable-a desideratum flowing from their Humean skepticism of certain aspects of human nature. As Hamilton notes in Federalist #1-his opening salvo against the anti-Federalists-“a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government.” This argument as to the necessity of the “vigor of government” to liberty is itself a gloss on Hume’s defense of modern versus ancient liberty, based especially on the absence of slavery under the former. Says Hume: Some passionate admirers of the ancients, and zealous partizans of civil liberty . . . cannot forbear regretting the loss of this institution; and whilst they brand all submission to the government of a single person with the harsh denomination of slavery, they would gladly reduce the greater part of mankind to real slavery and s~bjection.’~

Barbarity and extreme love of liberty (unconstrained by the hard-won checks of law and superior European custom) together were the mark of the ancient tyrant.30

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In writing of the artificial virtues, Hume speaks of the “heedless and impetuous movement” of the passions. This of course is language reminiscent of that in Federalist #48, where Madison characterizes an unchecked legislative branch as an impetuous vortex. And likewise in Federalist #49, the central thrust of Madison’s argument against Jefferson’s plan to turn constitutional controversies over to the people for resolution is that the public tranquillity would be disturbed, and passion agitated, in ways that were inimical to the future of republican government. Government could not be venerated under such circumstances, because it would not be venerable. Hume writes “as FORCE is always on the side of the governed, the governors have nothing to support them but opinion. It is therefore, on opinion only that government is f~unded.’’~’ While all power, on Lockean premises, must derive from the people, the manner in which this power is exercised must be linked to consent mechanisms that enjoy the support of habit and prejudice. “Government itself,”Hume says, “. . . rests ultimately on opinion, and especially on that ‘opinion of right’ or habitual sense of moral obligation through which the virtue of allegiance is realized beyond what could be attributed to a government’s actual coercive san~tions.’’~~ Even in Federalist #2, John Jay emphasizes the fact that “This country and this people seem to have been made for each other, and it appears as if it was the design of Providence that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.” Admittedly, there is an important rhetorical purpose to Federalist #2 that causes Jay to exaggerate the degree of unity of the but his argument is nonetheless as far from social compact as it is possible to get. Rather, it emphasizes blood, birth, historical happenstance-a Humean science of regime origin that, whatever its truth, was thought to have utility (as was an appropriately deployed Lockean science of the same). Jefferson thought Hume’s History ofEngland to be a Tory document destructive of the spirit of liberty. However, it is worth remarking that even the Declaration of Independence modifies its claim to a contractual freedom residing in individuals by pointedly noting that “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are a c c ~ s t o m e d . ” ~ ~

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There is good sense in Hume, in the same way there is good sense in Locke, as long as one does not take him too seriously, or, more properly, does not accept without qualification or moderation his account of the human things. As the Founders did not accept each and every aspect of Locke’s philosophical teaching, so too they did not accept all of Hume. They took from him the best-that which appealed most profoundly to the exigencies of the time and to the exigencies of all times, from the political point of view. But the question remains as to the extent the Founders’ system is complete or self-sufficient if, for example, they accepted only the exoteric Locke and the politically salutary Hume. Locke after all understood that his political teachings were inextricably linked with a questioning of the provisions of the natural order, as Hume understood his politics rested on a rejection of the capacities of human reason and the possibilities of knowledge. To what extent, then, can the Founders pick and choose their principles? Can the structure of a house be chosen from one kit and the foundation from another? Put another way, do the ontological and epistemological premises and limitations thought critical by philosophers matter in the realm ofpraxis? Lockean social compact theory died in Europe almost before it was born, even in the English-speaking world-due in no ~ ~ small part to the devastating blows leveled against it by H ~ m eIn. America, social compact as a central ordering concept of politics and morality lived from the founding period through much of the nineteenth century, succumbing only to the suspect but compelling dogma of historical progress growing out of social Darwinism and pragmatism. Its longevity here is accounted for by its pride of place in the Founders’ thinking and their pride of place in ours. To what extent then are philosophy and the Founders’political philosophy two ships passing in the night? The answer, we suggest, is that they are not, at least for practical (i.e., political) purposes. The American Founders intended that social compact and a healthy “Tory skepticism”be merged into one republican system. That this intention could be pulled off, at least partially, is a function of the common intent of Locke and Hume. Each wanted to give an account of the founding of a society on principles that are self-executing, premised largely on individual interest. Neither wanted to argue for a comprehensive theory of the virtues necessary to sustain society. (We should note that such a theory-perhaps of an Aristotelian nature-may provide a third decisive piece of the Founder’s puzzle; albeit it is not a piece with which we are explicitly dealing here.)

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Locke had serious doubts as to reason’s ability to overcome the pull of fashion. In this sense, Locke’s individual in fact exhibits a hypersociality based on an essential trust of conventional wisdom.36Locke wishes to circumscribe the reach of politics and sociality-and therefore of passion and convention-with a doctrine of natural rights that, whatever its historical basis, legitimizes politics because of its grounding in reason. This legitimation occurs at the level of founding and at the subsequent level of ordinary electoral politics. One problem with this social compact for Hume, as we have seen, is that it purports to be rooted in nature but denies the legitimacy of monarchy, which is so rooted in human experience that it seems as “natural” a form of government as any men have ever devised. But this is precisely Locke’s point-not to deny the natural passions, but to give them limit. On the desire for peace, order, and good government, Locke is at one with Hume. For Locke, this desire requires that choice precede and limit, but not entirely supplant, opinion or custom; for Hume, opinion or custom is all. Social compact can thus be seen as a principled means of securing what might be called, to borrow a concept from St. Thomas Aquinas, the primary or common precepts of a decent politics. Hume’s critique of social compact can in turn be seen as a means of allowing for the secondary precepts of such a politics, which vary almost infinitely with circumstances. The primary precepts are distinguished from the secondary precepts by their greater knowability and their peculiar importance to man’s natural end.37If we take Locke seriously-as the Founders did for certain central purposes-a republican form is not simply preferable, as it might be for Hume, but necessary. On the other hand, if we take Hume seriously-as the Founders also did-we discover that within this republican form there are many salutary elements that cannot be accounted for or maintained on the basis of consent or even tacit consent. Indeed, Lockean theory, straight up, including its natural right to revolution, is arguably too destabilizing an influence for any actual society. Likewise, the radical skepticism of Hume, straight up, might also be de~tabilizing.~~ However, if we read Locke and Hume together, we end up, in a way, reading Blackstone, whose influence on early American constitutional thought is, not coincidentally, important. As Herbert Storing argues, “Blackstone seeks to maintain between the ground and tendency of civil society the central position of law, particularly the law as it is understood by judges and administered in their The common law

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thus becomes the forum in which, historically, universal principles of right are slowly eked out. The American Founding, we can suggest, tries to maintain a parallel rootedness in prudential historical, situated judgments-in custom-not only at the level of common law, but at the level of the political institutions and rhetoric of the new republic itself. In this scheme, nature and convention are deliberately blurred so that the latter may be seen to be a function of the former. The very last paragraph of The Federalist contains the only citation to Hume in the entire work.4o Hamilton quotes Hume’s argument as presented in “Of the Rise and Progress of the Arts and Sciences”: To balance a large state or society. . . whether monarchical or republican, on general laws, is a work of so great difficulty that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work Experience must guide their labor: Time must bring it to perfection: And the feeling of inconveniences must correct the mistakes which they inevitably f d into in their first trials and experiment^.^^

We should note that Hamilton in the next breath goes on to exalt as a prodigy the establishment of such a constitution with the consent of the whole people. So even if we take Hume’s role in the American Founding seriously, we need not reject rationalism in the founding period in the manner, for example, of Barry Alan Shain.42Liberal individualism and conservatism do not directly war in America because they operate at different levels, for different ends. And we want to suggest that this operation is an intentional artifice of the American Founding, whose basis in rationalism cannot be ignored, any more than its intended secondary functioning in a certain kind of traditionalism. In Douglass Adair’s well-known formulation, philosophy of government, in its immediate, practical implications, came to America more through Scotland than through England or France. According to Adair’s Hume, there are constant and universal principles of human nature and therefore of government that are accessible to human reason through historical study.43 Political circumstances may vary infinitely, but the human essence never fails to reveal itself. Hume’s historicism thus has the universal cast to which we have already directed our attention. Seen in this light, the historical discussions that characterize both the Philadelphia Convention and The Federalist are essential to understanding the thrust of each, but do not critically undermine natural rights

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doctrines. History becomes a means to scientific understanding of principles. John Adams, in his Defense of the Constitutions of Government of the United States, devotes hundreds of pages to gleaning such principle^.^^ Though Adams’ approach is not one of Lockean natural rights, his methodology has an equally universal intent. CONCLUSION What might be the consequence of this melding of Locke and Hume, practically speaking? It is certainly compatible with the suggestion that the Founders intended first-order regime problems-such as the Civil War-to be settled without compromise on the basis of principle. It is also compatible with their recognition that second-order problems admit to a variety of solutions, those most rooted in prescription and practice having special weight. And prudence is of course required to know the difference between the two. Americans in many contemporary walks of life (Supreme Court justices prime among them) could perhaps be profitably reminded of this basic dichotomy. We can be historically grounded without denigrating universal natural rights principles. O n the basis of this Thomistic synthesis, deemphasizing neither the Enlightenment rationalism nor the Toryism of the Founding, various friends of the Founding need not be enemies of one another, excepting only at the highest level of abstraction. Hume can be used-and was used-to minimize and mask the dangers of modern scientific understandings of politics and the freedom they imply. Whether or not this masking can be pulled off, theoretically, is a slightly different question from whether or not the politics that flow from it are salutary. NOTES 1. David Hume, An Enquiry Concerning Human Understanding, ed. David Steinberg (Indianapolis: Hackett Publishing, 1977), 28-29. 2. Hume, An Enquiry Concerning Human Understanding,9-10. 3. Hume, “Of the Original Contract,” in Essays, Moral, Political, and Literary, ed. Eugene F. Miller (Indianapolis, Ind.: Liberty Fund, 1985), 465-66. 4. Hume,A Treatise fHuman Nature, 111.1.111, in Henry D. Aiken, ed. and int., Hum& Moral and Political Pbilosopby (New York Hafner Publishing, 1948), 154.

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5. Hume, “An Enquiry Concerning the Principles of Morals,’’ in Aiken, Hum& Moral and Political Philosophy, 177-78. 6. Hume, A Treatise of Human Nature, 111.111.1, 132. 7. Hume, “Of Some Remarkable Customs,” in Miller, Essays, Moral, Political and Literary, 367. 8. Hume, “Of Some Remarkable Customs,” 367. 9. Hume, A n Enguiry Concerning Human Understanding,114. 10. Hume, An Enguiry Concerning Human Understanding,11. 11. Hume, A Treatise of Human Nature, 111.11.11, 56. 12. Hume, “Of the Original Contract,” 467-68. 13. Hume, “Of the Original Contract,” 469. 14. John Gray, Liberalisms: Essays in Political Philosophy (London: Routledge, 1989), 252. See also Hume, A Treatise $Human Nature, 111.11.11. 15. Hume, “Of the Origin of Government,” in Miller, Essays, Moral, Political, and Literary, 39-40. See also Hume, “Of the Original Contract,” 471: “Almost all governments, which exist at present, or of which there remains any record in story, have been founded originally, either on usurpation or conquest, or both, without any pretence of fair consent, or voluntary subjection of the people.” 16. Hume, “Of the Origin of Government,” 40. 17. Hume, “Of the Origin of Government,” 37. 18. Hume, “Of the Original Contract,” 470. 19. A lengthier account of the characteristics of Hume’s civil society as I have described it can be found in Robert S. Hill’s chapter “David Hume,” in History of PoliticalPhilosophy (3rd ed.), eds. Leo Strauss and Joseph Cropsey (Chicago: University of Chicago Press, 1987), esp. 550-56. 20. In addition to Hume’s full discussion in book 3 of the Treatise,see also “Of the Original Contract,” 479-80. 21. Hume, “Of the Original Contract,” 480. 22. Hume, “Of the Original Contract,” 487, emphasis in the original. The main “partizan”in Hume’s sights here is of course Locke. 23. I am indebted here to the compact and insightfLl rendition of b u d Haakonssen in “The Structure of Hume’s Political Theory,” in The Cambridge Companion t o Hume, ed. David Fate Norton (Cambridge: Cambridge University Press, 1993). 24. Haakonssen, “The Structure of Hume’s Political Theory,” 192. 25. Haakonssen, “The Structure of Hume’s Political Theory,” 196. 26. Hume, “Idea of a Perfect Commonwealth,” in Miller, Essays: Moral, Political, and Literary, 512. 27. Hume, “Idea of a Perfect Commonwealth,” 528. See also Hume, “Of the First Principles of Government,” in Miller, Essays: Moral, Political, andliterary, 36. 28. For a more detailed discussion of the relationship between Hume’s essay and Madison’s thinking, see Douglass Adair, “‘That Politics May Be Reduced to

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a Science’,”in Fame and the Founding Fathers: Essays by Douglass Adair, ed. Trevor Colbourn (Indianapolis, Ind.: Liberty Fund, 1998), 138-51. 29. Hume, “Of the Populousness of Ancient Nations,” in Miller, Essays, Moral, Political, and Literary, 383. 30. Hume, “Of the Populousness of Ancient Nations,” 419. 31. Hume, “Of the First Principles of Government,” 32. 32. Frederick G . Whelan, Order and Art9ce in Hume? Political Philosophy (Princeton, N.J.: Princeton University Press, 1985), 273. 33. Federalist #2 seems radically out of step with Federalist #6 or #lo, wherein disharmony and faction are presented as problems requiring innovative and decisive solution. 34. The language of sufferance is Lockean. Compare Jefferson’s language with Locke’s in paragraph 223 of the Second Treatise:“till the mischief be grown general, and the ill designs of the Rulers become visible, or their attempts sensible to the greater part, the People, who are more disposed to suffer, than right themselves by Resistance, are not apt to stir.” However, Jefferson’s preference for the long established-the dictate of prudence to prefer the patina of age-has a distinctly Humean cast. 35. And, of course, the Utilitarians who followed him, though their philosophical premises are less comprehensive and arguably less compelling. 36. Peter McNamara, “Locke and the Civil Society Debate,” in Liberalism in the New Millennium, ed. Bradley C. S. Watson (Latrobe, Pa.: Center for Economic and Policy Education, 2000). 37. For a discussion of this notion with specific reference to Thomas, see Ernest L. Fortin, “St. Thomas Aquinas,” in Strauss and Cropsey, History ofPolitical Philosophy, 266-67. 38. We should not forget that the Scottish “Common Sense School” of Thomas Reid-Hume’s contemporary and great critic-was also well regarded by the Founders. Jefferson in fact commented that the Constitution could only be understood in conjunction with Reid’s “natural language” theory. In An Inquiry Into the Human Mind on the Principles of Common Sense and Essays on the Powers ofthe Human Mind, Reid had taken issue with Hume’s basic claim that knowledge is mediated by sensory perceptions, and ideas based on them, alone. Reid by contrast argued that we are so constituted that “common sense” understandings can be taken to reflect the world as it actually is, not merely as it is perceived. We have direct knowledge, as opposed to indirect or mediated knowledge, of what is. Anything that we must-and do-accept for all practical purposes (for example, causation) is a dictate of common sense to which philosophical gymnastics must always give way. In our understandings, activities, and our moral sense, we are guided by processes deep within us that accord with our own nature and the world as it actually is. As our mind through its mysterious physiological nature can decode what indubitably is, so our conventional language-as a means of describing reality-is rooted in, and impossible without, a primordial, preverbal,

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natural, and visual language that also accords with human needs and a larger external reality. 39. Herbert J. Storing, “William Blackstone,” in Strauss and Cropsey, History of Political Philosophy, 627. 40. It is worth noting too that in Federalist #69, Hamilton quotes Alexander Pope on administration-“For forms of government let fools contest-That which is best administered is best.” In so doing, he is also paraphrasing Hume, who relies on the same quotation to make a point similar to Hamilton’s. See Hume, “That Politics May be Reduced to a Science,” in Miller, Essays, Moral, Political, and Literary, 14-15. Like Hume, Hamilton cannot “acquiesce in the political heresy” that regime form is subsidiary to administration-administration being, in Hume’s terms, “the casual humours and characters of particular men.” In their respective essays, Hamilton perhaps overstates, for rhetorical purposes, the attainability and importance of virtue in administration, and Hume understates it. But there is a middle ground that the two share-a recognition of the importance of the prudential, historically situated tempers of individual men acting in an executive or administrative capacity, and the role played by the regime in determining how these tempers are encouraged or discouraged. 41. See Hume, “Of the Rise and Progress of the Arts and Sciences,”in Miller, Essays, Moral, Political, and Literary, 124. 42. Barry Alan Shain, The Myth ofAmerican Individualism: The Protestant Origins of American Political Thought (Princeton, N.J.: Princeton University Press, 1994). 43. Adair, “‘That Politics May Be Reduced to a Science’,” 134-35. 44. Adair, “‘That Politics May Be Reduced to a Science’,” 137. For a more complete treatment of Hume’s influence on Adams, see Adair, “‘Experience Must Be Our Only Guide’,” in Colbourn, Fame and the Founding Fathers, esp. 153-59.

The Political Theory of the Declaration of Independence Thomas G. West

z e American Founding was based on the theory of the social compact. The Declaration of Independence, which officially brought the United States of America into existence, has a brief summary of that theory in the crucial first two paragraphs.' This brief statement of principle in the Declaration summarizes the core of the political theory that is articulated at greater length in other official founding-era documents. The gist of the argument can be stated as follows:

1. All human beings are by nature equal-not in the sense of being equally talented or honorable, but in the sense that no adult has the right to rule another adult without his or her consent. 2. The equality of human beings means that all have a right to liberty-that is, a right not to be enslaved or injured by others in their lives, their liberty (including the right to worship God as one freely chooses), or in their property freely acquired by their own labors. 3. Since these rights are insecure when human beings live together in a state of nature (where no government is available to provide punishment for deliberate injuries), governments are established to provide that security. 4. Governments should be founded by popular consent, for two reasons. First, through majority rule, we retain collectively some of the natural liberty we possessed as individuals. Second, frequent elections are an effective means by which the people can remove government officials who violate their rights. 95

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5. Finally, because the right to liberty is strictly speaking inalien-

able-we delegate its exercise to government only conditionallythe people retain a right to revolution if government fails to secure their rights, or if it fails to operate on the basis of consent.

The Declaration is written in the form of a logical syllogism: First, these are the principles of government; second, the British king has been violating these principles for a long time; third, therefore the United States is declaring its independence of Britain. This chapter will demonstrate the truth of the claims that I have just made. I will draw on other documents of the period, especially official documents approved by elected bodies, to show that the political theory of the Declaration really is the official theory of the American Founding, and that this theory is coherent, profound, and easily comprehensible, once one is familiar with the social-compact mode of thinking that prevailed in that day. My aim here is not merely historical. America has become the richest nation in world history. More important, contrary to the gloomy predictions of the European left (Marx) and right (Nietzsche), America is still arguably the freest and best-governed of all countries. Yet, as we will see, the theory of the founding has been rejected by all of today’s liberals and most of today’s conservatives. One cannot help wondering if this rejection is based on good grounds, or whether it is merely the thoughtless consequence of philosophical trends that may well prove to be ephemeral. For if the social compact theory of the founding is responsible, at least in part, for making our constitutional democracy work so well, then our rejection of it may endanger the survival of what is best in American political life.

THE REASONABLENESS OF THE DECLARATION I begin with a discussion of the rational foundation of the theory of the

Declaration, for reason, not blind tradition or mysterious revelation, is our announced ground. I then turn to a discussion of the key terms in the social compact theory of the founding: the laws of nature, the inalienable natural rights of individuals, the proper place for inequality, the state of nature, the meaning of the consent of the governed, and the right to revolution. In each part of the chapter, I show the meaning of the key con-

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cepts by reference to other authoritative documents of the founding era. I do not mean to say anything grand or brilliant. But I do believe that few of today’s scholars are adequately aware of the logical coherence and persuasiveness of the Founders’ theory of politics. In the Declaration of Independence, when the Founders pledged to one another their lives, fortunes, and sacred honor, they faced an obvious threat to their liberty from a British government that had arrogantly claimed the right to compel Americans to submit to their will “in all cases whatsoever.” This claim, ominous enough when Parliament made it in 1765,was the ground of what by 1776 had become a full-scale military invasion to force the colonies to submit to British rule. The Continental Congress declared independence on July 2,1776, in these words: Resolved, that these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown, and that all political connection between them, and the state of Great Britain, is, and ought to be, totally dissolved.

The next day, John Adams wrote, in a letter to his wife: the second day of July, 1776, will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated, as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward, forevermore.2

What Adams describes here is still recognizable in our Independence Day celebrations. But Adams was wrong about the date. It is important to see why. The delegates to Congress could have limited themselves to the merely willful assertion, just quoted, that America was of right independent. To their credit, they did not. They recognized that it was important to state, as Adams wrote, “the reasons which will justie it in the sight of God and man.”3Those reasons announce to the world the conception of justice that America was going to be based upon, and upon which all nations ought to be grounded. In the words of the Declaration of Independence: “a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” The “causes”declared in the Declaration

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turn out to be an account of the principles of political justice, followed by a summary of the British actions that violated those principles. Convictions about right and wrong, we infer, are the deepest causes of our nation’s existence. We celebrate Independence Day on July 4,not July 2, in recognition that our mere political existence is not as important as the grounds of our existence. From the start of the quarrel with Britain that culminated in independence, Americans had sought to ground their politics on reason.James Otis’s Rights ofthe British Colonies (1764) was the first secular American essay on political theory formally approved by a colonial legislature. Otis writes, “Sic volo, sic jubeo, stet pro ratione voluntas” [Thus I will, thus I command; let will take the place of reason] belongs not of right to any mortal man.4 Americans aspired not merely to liberty but to rational liberty, as they sometimes called it, a liberty worthy of human dignity. (The New York Constitution of 1777 speaks of “the benevolent principles of rational liberty”; the expression also occurs in Federalist #53 .)5 Reason, not will, ought to rule: this is a great theme of the Western tradition of political discourse. Plato’s Republic contains the classic contrast of the irrational, willful tyrant enslaved to his passions, with the rational ruler, master of his desires. Reason discerns the standards to which will ought to conform. In his First Inaugural Address of 1801 Jefferson said: “though the will of the majority is in all cases to prevail, that will to be rightfd must be reasonable.”6 Following its introductory sentence, the Declaration has two main parts. “We hold these truths” begins the statement of political principles. The longer second part of the document details Britain’s trespasses against the principles announced in the first part. This list is meant to justify the revolution by showing that British conduct toward America truly did violate the principles of just government as defined in that universal, theoretical statement.

THE LAWS OF NATURE AND OF NATURE’S GOD Many historians, for example Edmund Morgan, believe that the Americans stumbled into the idea of human equality “only half consciously and unwillingly” during the quarrel leading up to independence.’ But this is simply incorrect. The Americans were quite consciously appealing to nature from the very beginning of the controversy.This was most evident in

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Massachusetts. As early as 1762, its General Assembly sent instructions to its agent in London, appealing explicitly to Locke’s doctrine of natural rights: The natural rights of the colonists, we humbly conceive to be the same with those of all other British subjects, and indeed of all mankind. The principal of these rights is to be “free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule.”8

In the Stamp Act crisis of 1765, the Massachusetts Assembly passed these resolutions:

I. Resolved,-That there are certain essential rights of the British constitution of government, which are founded in the law of God and nature, and are the common rights of mankind;-therefore, 11. Resolved,-That the inhabitants of this province are unalienably entitled to those essential rights in common with all men: and that no law of society can, consistent with the law of God and nature, divest them of those rights.’

As long as they thought it helpful to the cause of liberty, Americans were willing to appeal to both nature and the British tradition. But when they gave up hope that Britain would honor the British constitution, as the Americans understood that constitution, they declared independence, relying exclusively on “the laws of nature and of nature’s God.”Those laws are the discovery of human reason, the unaided intellect contemplating human nature as it is. Religion may confirm the discovery; tradition may embody it; but the principles of government are truths knowable to the human mind-in principle, any human mind-reflecting on the nature of man. If the Americans of 1776 had wished to base their independence on an appeal to the rights of Englishmen and the sanctity of British tradition, nothing prevented them from saying so explicitly. Instead of relying on the laws of nature and the rights of all men, the Declaration could quite easily have cited, as Congress had done in 1774, “the principles of the English constitution, and the several charters or compacts’’ as the basis of their rights. But long before 1774, Americans had become convinced that the ultimate ground of their rights was nature, not tradition. In fact, when they appealed to the British tradition, as in the Massachusetts resolves just quoted, they typically emphasized that the tradition was good only because

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it was based on the laws of nature. In 1774, before mentioning the British constitution and colonial charters, Congress first asserted that Americans possessed their rights “by the immutable laws of nature.”l0 Here is the Declaration’s statement of principles: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness-that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

Jefferson later said that he intended these words “to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent.”12Yet in our time these plain terms demand some explanation. O n the one hand, the words are so familiar that they have no distinct meaning to most people. O n the other, many scholars are too quick to assimilate terms like “rights”and “equality”to the agenda of contemporary liberalism, which is based on an understanding of human nature and politics completely different from that of the Declaration.

EQUALITY “That all men are created equal” is the first self-evident truth of the Declaration, on which all the rest are built. But what sense is there in saying that all human beings are equal? Far from being self-evident, the equality claim seems absurd on the face of it. A boxing trainer, reminiscing about heavyweight champion Rocky Marciano, once observed: “If you don’t have a good chin, forget it. God supposedly created us all equal. He really didn’t. H e created some with chins, and some Yet Jefferson maintained that all American “Whigs”-those who favored American selfgovernment-believed the political theory of the Declaration. The letters, essays, and official documents of the period confirm that he was right. If the equality idea is not simply wrong, it might seem too vague to supply any real political meaning. Historian Eric Foner writes, “the

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notion of equality, like many slogans of the revolutionary era, was an idea whose meaning lay in the eye of the beholder.” Such scholars echo certain pre-Civil War opponents of abolitionism, who, under the influence of partisan motives, dismissed the Declaration’s principles as “glittering and sounding generalities of natural right” that have no practical relevance. More recently, Pauline Maier, in her book American Scripture, claims that the Declaration is “a peculiar document to be cited by those who championed the cause of equality. . . . [Tlhe document’s original function was to end the previous regime, not to lay down principles to guide and limit its successor.” In Maier’s view, the equality idea in the Declaration has nothing to do with the form or purpose of g0~ernment.l~ It is certainly true today that the equality idea in the Declaration is thought to mean many different things, or nothing at all. But Jefferson and the Founders had something quite definite in mind. They did not commit the absurdity of thinking everyone equal in every respect, or even in every important respect. Human beings are equal in the l f e and liberty they are born with and deserve to keep. The first sentence of the 1776 Virginia Declaration of Rights, which became the model for several later Bills of Rights, begins: “all men are by nature equally free and independent.” Jefferson’s rough draft of the Declaration reads, “all men are created equal and independent.”15Their equality lies in their freedom. There have been times in American history when people have denied that the Declaration means what it says. This was especially true during the great controversy that led up to the Civil War. In his debates with Lincoln, Stephen Douglas asserted that this government was made on the white basis. . . . The signers of the Declaration of Independence never dreamed of the Negro when they were writing that document. They referred to white men, to men of European birth and European descent, when they declared the equality of all men. . . . When the Declaration was put forth, every one of the thirteen colonies were slaveholding colonies, and every man who signed that instrument represented a slave-holding constituency. . . . When you say that the Declaration of Independence includes the Negro, you charge the signers of it with hypocrisy.

Many historians today agree with Douglas. But Lincoln responded that the equality of the Declaration applied to all human beings, black and white. He said that the historical record prior to the 1850s

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may be searched in vain for one single affirmation, from one single man, that the Negro was not included in the Declaration of Independence. I think I may defy Judge Douglas to show that he ever said so, that Washington ever said so, that any president ever said so, that any member of Congress ever said so. . . . And I will remind Judge Douglas and this audience,that while Mr. Jefferson was the owner of slaves, as undoubtedly he was, in speaking upon this very subject, he used the strong language that “he trembled for his country when he remembered that God was just.”16

Many today believe that Lincoln was wrong. Instead, they accept the Southern or Douglas view of the Declaration: that “men”in the Declaration meant “white males” (or “white males who own property,” or “white English protestant Christian males”). Nothing could be further from the truth. Douglas was wrong, and Lincoln was right. Not only were free blacks citizens in several states in 1776; there was also widespread acknowledgment, North and South, that slavery unjustly deprived the slaves of their equal natural right to liberty. There are facts, however, that demand explanation, if the Founders are to be vindicated. Slavery was legal in every state in 1776. Married women were generally not permitted to vote or own property. Most states forbade the propertyless poor from voting. The Founders did have reasons for either reluctantly tolerating or strongly supporting these practicesreasons they thought consistent with the full humanity of women, blacks, and the poor. I have given a fuller account of the Founders’ thoughts on these matters in Vindicating the Founders.” For the moment, let it be plainly said that “men”in the Declaration is a synonym for mankind, meaning human beings, male and female, of whatever color or nation. This can be seen most obviously in the common variants of the day: “rights of men,” “rights of man,” “rights of mankind,” “rights of humanity,” “rights of human nature,” “human rights,” “rights of nature.”18 Not one Founder denied that blacks were human beings. Still less did they, or could they, deny that women were human beings. Alexander Hamilton said: “Natural liberty is a gift of the beneficent Creator to the whole human race.”19Jefferson, in his Notes on Virginia,reproaches the Indians for failing to acknowledge the equality of women: “The women are submitted to unjust drudgery. This I believe is the case with every barbarous people. With such, force is law. . . . It is civilization alone which replaces women in the enjoyment of their natural equality.”20Similarly, regarding race, James Otis, in the important essay cited earlier, writes: “The

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colonists are by the law of nature freeborn, as indeed all men are, white or black.”21 The equality of human beings lies in their sharing, at least in the decisive respects, a common human nature. Although some men are certainly superior to others in intellect, energy, or virtue, these qualities do not elevate them above their fellow human beings to the point that they have the right to rule them without their consent. In the same essay, Otis quotes John Locke: There is nothing more evident, says Mr. Locke, than “that creatures of the same species and rank, promiscuously born to all the same advantages of nature and the use of the same faculties, should also be equal one among another without subordination and subjection, unless the master of them all should by any manifest declaration of his will set one above another and confer on him by an evident and clear appointment an undoubted right to dominion and superiority.”22

In accordance with this conception of equality, the Continental Congress in 1775 sarcastically requested the British to provide America with some such “manifest declaration” from God of their right to lord it over us: If it was possible for men who exercise their reason to believe, that the Divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, . . . the inhabitants of these colonies might at least require from the parliament of Great Britain some evidence, that this dreadful authority over them has been granted to that

As we have already seen, Lincoln rightly noted that no one at the time of the founding said that God intended the white part of the human race to hold an absolute property in, and an unbounded power over the black part. (As for the female part, Lincoln was fond of remarking, “In some respects she [the black woman] certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.”)24 Manifest evidence of the superiority of one part of a species to another actually exists in some animals, as Edward J. Erler writes: The queen bee, for example, is the natural ruler of the beehive, having been marked out by natural superiority for rule. The hierarchy of the beehive is imposed upon the hive by nature. Bees have no capacity to

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change this relationship and no consciousness that change is possible. There will never be a convention of bees that decides that the matriarchal rule of the queen bee is unjust and proposes the dictatorship of the proletariat as an alternati~e.~~ Just before he died, Jefferson returned to the equality theme in a striking image that had been used by two English republicans executed by king Charles I1 in the 1680s: “[Tlhe mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.”26

NATURAL RIGHTS AND NATURAL LAW What does it mean to say that human beings are “endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness”? A right is a claim that a person may rightfully make against someone who would deprive that person of what is his or her own. If I lend money, I have a legal right to be repaid when the loan period is over. If I am born free and deservedly so, I have a natural right to the liberty I was born with, and I may assert that right against anyone who might attempt to enslave me. The rights of men could be said to be an explanation of the equality, meaning the equal liberty, of all. In Jefferson’s rough draft of the Declaration, he tied equality and rights together in this way: “that all men are created equal and independent, that from that equal creation they derive rights inherent and inalienable, among which are . . . ”27 James Otis gives a similar account: In order to form an idea of the naturaZ rights of the colonists, I presume it will be granted that they are men, the common children of the same Creator with their brethren of Great Britain. Nature has placed all such in a state of equality and perfect freedom to act within the bounds of the laws of nature and reason without consulting the w i l l . . . of any other man.28 As we have seen, this equal liberty is right because no person deserves to be the natural slave or master of another. Since it is right, each person has a right to that liberty, a just claim against whoever takes it away, or threatens to.

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What is a right from one point of view is a duty from another. I have a right to liberty, but you have a duty to respect that right. A human being not only has a right but a duty to preserve him- or herself. The Americans gave the name law ofnature to what is lawful or right for human beings according to their nature. This expression is a bit repellent to us because we are not used to thinking of nature as having any laws, except the mechanical ones of physics. But what is meant is simple and readily understandable. Some things can be known to be right or wrong without any positive legal enactments to tell us so. It is wrong to murder, to rape, to take from a person the bread he or she earns with his or her own labor. These things are wrong on the basis described earlier, namely, that men are equal by nature. Accordingly, in the first paragraph of the Declaration, “the laws of nature and of nature’s God” are said to “entitle” the United States to a “separate and equal station.” The Declaration says that Americans have a right and a duty to revolt: “when a long train of abuses . . . evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government.” Such a right and duty derives from a law of nature that forbids enslavement of oneself or others. Reason discovers that law of nature by thinking about the meaning of the natural equality of human beings. I said that the rights of mankind follow from their equal liberty. It is more precise to say that the rights of mankind are founded on the law of nature. Founding-era documents frequently speak of the rights of mankind being founded in the laws of nature. This means that law, a duty, is more fundamental than right, a permission, in the thought of the founding. Since this point is controversial among scholars who, following Leo S t r a ~ s sbelieve , ~ ~ that in modern political thought natural rights are always more fundamental than natural duties, I will mention some of the most noteworthy instances where the Founders assert the primacy of natural law: The 1765 Resolves of the Massachusetts Assembly on the Stamp Act, Article I, says, “there are certain essential rights of the British constitution of government, which are founded in the law of God and nature, and are the common rights of mankind.” Boston’s Rights ofthe Colonists (1772) says that the rights of men “are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.” In the

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same document, ‘“Just and true liberty, equal and impartial liberty’ in matters spiritual and temporal, is a thing that all men are clearly entitled to, by the eternal and immutable laws of God and nature.” Jefferson’s influential 1774 Summary View ofthe Rights ofBritish America says that Americans claim “their rights as derived from the laws of nature, and not as the gift of their chief magistrate.” According to the October 1774 Resolves of the First Continental Congress, authored by John Adams, “the inhabitants . . . , by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following rights: Resolved, N.C.D.l. That they are entitled to life, liberty, and property.”30 What a man may claim as his right is determined by what is right. In “The Farmer Rehted” (1775), Hamilton denounced the view that man in the state of nature has no moral duties. That “absurd and impious doctrine,” says Hamilton, belongs to the atheist Hobbes. But “good and wise men in all ages,” including Locke and Montesquieu, “have embraced a very dissimilar theory”: They have supposed that the deity, from the relations we stand in, to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. . . . Upon this law depend the natural rights of mankind. . . . Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs, property, or liberty.31

THE FOUNDERS’ UNDERSTANDING OF MGHTS VERSUS RIGHTS IN MODERN LIBERALISM To understand the Founders’view, consider in contrast a common view of

today, according to which human rights are no longer based on human nature. Franklin Roosevelt called for a “Second Bill of Rights,” which included “the right to earn enough to provide adequate food and clothing and recreation,” “the right of every family to a decent home,” “the right to adequate medical care,” “the right to a good education,” and so forth.32 Jennifer Nedelsky, a modern scholar who is an explicit critic of the Founders, would replace their natural rights with “human autonomy,” which in her understanding not only accepts but fosters dependency on

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government. Nedelsky argues, persuasively, that liberal constitutional scholars have been unwilling to face the fact that the new view of rights requires the abandonment of the natural rights theory of the Founders: “The egalitarian vision [of today’s liberalism] is practically a reversal of this founding conception: whether the inequality of property is the result of liberty or not, it stands in the way of liberty and justice for all.” For only the abolition of inequality by forcible redistribution of property can achieve this vision ofjustice: “dependenceis no longer the antithesis of autonomy, but a precondition in the relationships . . . which provide the security, education, nurturing, and support that make the development of autonomy possible.”33 What Nedelsky Means is brought out in Harris w. McRae, a Supreme Court case dealing with the right to abortion. Thurgood Marshall’s dissent argued: I f . . . a funded abortion is unavailable, [poor women] must resort to back-alley butchers, attempt to induce an abortion themselves by crude and dangerous methods, or suffer the serious medical consequences of attempting to carry the fetus to term. . . . [Llegal abortion is not a significant option for such women.34

In other words, if govs.rnmentfails to fund a right, one cannot be said to have the right. ExteqJing the argument beyond abortion, it might be asked: How can I be said to have a right to life if I die from the lack of state-of-the-art medidal care? Can I really be said to enjoy a right to liberty if low income limits my opportunities to the things I like? Liberty includes a right to drive, but what good is that right if I don’t have a car and a full tank of gas?There must then be a right to health care, to food, clothing, and shelter, and perhaps, at least in principle, to an income high enough to allow me to satisfy all my desires. In the modern liberal conception of rights, liberty requires not just protection against being injured by others, but positive government programs providing or mandating aid to those who are thought not to have enough wealth. John Rawls has given a sophisticated argument in support of the position that those who have less have a moral right to some of the O n the basis of Rawlsian ideology, possessions of those who are well legislative bodies routinely require transfers of money and services from those who have more to those who supposedly have less. At the extreme, scholar Henry Shue alaims a global human right to subsistence and basic material needs, for which wealthy nations have a duty to pay.36

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In this new view, which has become increasingly influential over the past century, rights are no longer derived from human nature and its laws. Instead, a new ideal of human autonomy, in which man is liberated from the restraints and guidance of nature, holds sway. This human autonomy, far from being something that human beings possess by nature, can only be secured on the basis of a high degree of civilization, of the conquest of nature by human will. Rights do not come from man’s natural gifts. They come from a willfbl assessment of the current state of society, with a view to maximizing each person’s liberation from natural limits. Rights come from an ideal of human autonomy created by the human will. The realization of that ideal requires that those who have intelligence, ambition, sobriety, wealth, education, and so forth be compelled to support those who do not have the same talents or fortunes. Rights derive not from what one has in common with other human beings (the same human nature), but from what makes oneself inferior to others-“victimization.” The rights of nature, as the Founders saw it, are based on what man is and has by nature-his life, his liberty, and his ability to acquire property and pursue happiness. For the Founders, a “right to decent housin$’-let alone a “right to recreation”-would be nearly unintelligible. A natural right, to repeat, is a just claim against someone who would deprive a person of what is naturally his or her own. No one possesses by nature food, learning, and free access to medical care. No one possesses by nature the kind of autonomy demanded by Nedelsky. The lack of such things does not create a rightful claim against others to provide them with food, medicine, free education, or “autonomy.”It does nothing more than leave each person free to provide such things for him- or herself. But one is obliged by nature to leave other people alone in their reasonable pursuit of health, education, and property. Although the Declaration says we have a right to life and liberty, it does not say we have a right to happiness. Unlike life and liberty, happiness is not something we possess by nature. We cannot claim it as a right whenever we are miserable. Likewise, there is a right to acquire and possess property, but no right to be wealthy. Everyone has the capacity to acquire wealth and pursue happiness,just as everyone has the capacity to live, be free, and worship God. To possess a right, even to exercise it, does not guarantee that it will lead to the end desired. Happiness is earned by talent and effort, or enjoyed unbought through grace or good fortune. All human beings by nature do possess life, liberty, the ability to pursue happiness, the ability to acquire property, and a mind that forms opin-

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ions by reason and conviction. These natural possessions, the “property” we all own by nature, are the principal rights of man. Madison, in an essay on property, said: In its larger and juster meaning, it [property] embraces everything to which a man may attach a value and have a right; and wbich leaves to everyone else the like advantage. . . . In the latter sense, a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights3’

RELIGIOUS LIBERTY AND PROPERTY The Declaration says that “among these rights” of mankind are life, liberty, and the pursuit of happiness. Of the rights not mentioned in the Declaration, the most important for the Founders were proper9 and conscience (freedom of religion). From the Virginia Declaration of Rights (1776) comes this classic statement of the right of conscience: “religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of con~cience.”~~ The town of Boston had advanced the same claim four years earlier: “every man living in or out of a state of civil society has a right peaceably and quietly to worship God according to the dictates of con~cience.”~~ The right of conscience was frequently mentioned in the state constitutions of the period. No Founder denied it. They did disagree on the extent to which government would support religion, or whether there could be religious qualifications for public officials. These were matters of considerable controversy. Property is the other important unmentioned right in the Declaration of Independence. For anyone familiar with the terms of the colonial debate with Britain, this omission from the Declaration’slist of inalienable

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rights is surprising.The dispute between Britain and America leading up to the American Revolution began with property: Parliament had passed laws “imposing taxes on us without our consent,” as the Declaration says. When the Americans of the founding era listed the rights of man, property was almost always included. Boston’s Rights ofthe Colonists was typical: “Among the natural rights of the colonists are these: First, a right to lfq secondly to liberty; thirdly to property.”“ Whatever the reason may be for the Declaration’s silence on the right to property, one common misconception can be dismissed easily. Jefferson did not omit the right to property because he did not regard it as a fundamental right, as some have said.41Jefferson was a firm adherent of that right, which he regarded as a part of the right to liberty. In 1774 he wrote, “Still less let it be proposed that our properties within our own territories shall be taxed or regulated by any power on earth but our own. The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”42Jefferson held this view throughout his life:

To take from one, because it is thought his own industry and that of

his fathers has acquired too much, in order to spare to others, who, or whose fathers have not, exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.43

Today the subject of property rights makes people wary about the founding. Protecting property, it might seem, amounts to protecting the right of the wealthy to domineer over the poor. Does the Founders’ view of equality end up cementing in place an invidious class structure? On the contrary, the Founders thought of the right to property as a protection to the poor. To be sure, the right protects anyone who already has wealth. But equally important, in their view, is the protection of the right to acquire property. The right to property means that those who have no wealth as yet may keep the property they earn. The Virginia Declaration of Rights names, among the rights of all men, “the enjoyment of life and liberty, with the means of acquiring and possessing p r ~ p e r t y . ” ~ ~ In the Founders’ world, the laws of old Europe, and to some extent even American law, favored established wealth and made it difficult for the poor to become wealthy by their own effort. Talent and ambition everywhere had to defer to family and arbitrary privilege. Under colonial law, the property rights of the wealthy were superior to those of the poor. William E. Nelson writes, “The older claimant’s usage [of his land] would

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be elevated to the level of a property right and a more recent claimant would have to use his land so as not to interfere with the older right.”45 Ownership of property “conferred on an owner the power to prevent any use of his neighbor’s property that conflicted with his own quiet enjoyment.”This right of established property could be and actually was sometimes used to prevent development of land adjacent to a wealthy man’s land. By the nineteenth century it had become clear that, “because this conception of ownership necessarily circumscribed the right of others to develop their land,” it was unsuited to American society because it violated the property rights of the poor. The older conception of property derived from medieval times, when the law protected the English gentry from competition from upstart artisans and manufacturers. Feudal law treated existing property relations as rightful and permanent. The rich were supposed to stay rich, and the poor to stay poor. Therefore “the antidevelopmental doctrines of the common law. . . clashed with the spirit of economic improvement.”In the years following the Revolution, “the idea of property underwent a fundamental transformation-from a static agrarian conception entitling an owner to undisturbed enjoyment, to a dynamic, instrumental, and more abstract view of property that emphasized the newly paramount virtues of productive use and de~elopment.”~~ The Founders soon achieved their goal. Laws required division of inheritance among the children. Property law made the use and sale of property easy even for those without connections. Money and positions circulated rapidly, as the efforts and luck of each succeeding generation determined their place in society. Children of the poor fiequently rose to wealth, and children of the wealthy often fell back into the mass of those neither rich nor poor. Irish and Italian immigrants,who arrived without money or status and were often disliked by Americans already living here, gave birth to children and grandchildren whose wealth now surpasses the average wealth of Anglo Saxon Protestants. Unlike old Europe, the American rich and poor did not develop “class consciousness.” Historically, the poor and middle classes have not looked on the rich with destructive envy, but with the confidence that one day they themselves or their children may also be wealthy. INEQUALITY AND HONOR The protection of the right to acquire property was but one aspect of a larger American purpose in establishing a government of liberty: to make

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honors correspond as closely as possible to real natural differences among human beings. Just as the fighter with a chin prevails, and should prevail, in boxing, so those of real merit and abhty would face no legal obstacle to thriving in a country that protects the rights of individuals. Far from lowering the standards of public life, freedom allows true merit to shine. In the Old World, merit too often remained sunk in the obscurity of the low origin of its possessor. For that reason, Algernon Sidney, an English writer much admired by the Americans, appealed to the principle of detur digniori (“let it be given to the worthier”) in his attack on hereditary aristocracy and monarchy and defense of equal rights.47 Before the American political struggle with Britain began in the mid-l760s, George Washington was already denouncing the British custom of fding places in the military through connections and patronage. His honor was bruised when he found himself compelled to obey men less able than himself as a consequence of this system. Washington held that “the strictest justice’’ required appointment by merit alone. This was not just Washington’s pride speaking. Almost all Americans shared his view. When Washington became head of the American armies in 1775, he did his best to make sure that appointments would go to those best qualified. He thought this practice was characteristic of America.48 David Ramsay, a leading South Carolina patriot, explained the American view in this way: It is the happiness of our present constitution, that all offices lie open to men of merit, of whatever rank or condition; and that even the reins of state may be held by the son of the poorest man, if possessed of abilities equal to the important station. We are no more to look up for the blessings of government to hungry courtiers, or the needy dependents of British nobility; but must educate our own children for these exalted purposes.49 The American doctrine of equality of rights corresponds to true equality, and, at the same time, to the natural and legitimate inequality in human nature. Insofar as men are equal, they are rightfully treated the same: as rational creatures having equal claims to life and liberty. Insofar as they are different, they are treated differently: the talented, the hardworking, and the virtuous are given scope to display their superior qualities. Men are born free of the rule of other men, but their natures are limited-one could say, with Aristotle, enslavedS0-in many ways. Some have chins, some have the capacity for wisdom and virtue, some have the clev-

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erness or tenacity to acquire wealth-and some do not. The equality principle recognizes in this way man’s natural sameness and difference. This union of equality and inequality is caught well by Samuel Williams’s 1794 “The Natural and Civil History of Vermont”: [The people see that] nature has made them equal in respect to their rights; or rather that nature has given to them a common and an equal right to liberty, to property, and to safety; to justice, government, laws, religion, and freedom. They all see that nature has made them very unequal in respect to their original powers, capacities, and talents. They become united in claiming and preserving the equality, which nature has assigned to them; and in availing themselves of the benefits, which are designed, and may be derived, from the inequality, which nature has also establi~hed.~~

John Adams never wavered in his attachment to the equal rights of mankind, but he was well aware of the reality and necessity of human inequality: Nature, which has established in the universe a chain of being and universal order, descending from archangels to microscopic animalcules, has ordained that no two objects shall be perfectly alike, and no two creatures perfectly equal. Although, among men, all are subject by nature to equal Zaws of morality, and in society have a right to equal Zaws for their government, yet no two men are perfectly equal in person, property, understanding, activity, and virtue, or ever can be made so by any power less than that which created them.s2

The doctrine of egual rights, which leads to unegual results, is in this light a fundamental command of justice: that each person should be treated by the law in accord with his real merits and achievements. No one should be held back or pushed forward because of privileges or disabilities mandated by law.

THE STATE OF NATURE The Declaration reads: “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Behind this brief statement lie the concepts of the “state of nature” and “social compact.” These expressions do not occur in the document. But

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they were widely known and accepted by the Founders, and they clarify the words just quoted on the purpose of government and the need for consent. Having affirmed the rights of man, the Declaration proceeds to the establishment of government. Yet the very notion of basing government on equal liberty seems at first to be an impossibility. Men are born free; no one can tell them what to do or not do; yet government requires and forbids many things. How can such a loss of freedom be justified? The answer, briefly told, has three parts. First, people never really give up their inalienable natural rights. They may delegate the exercise of part of their right to liberty to government, but they are always permitted to resume the exercise of that right if government misbehaves badly. Second, most natural rights are in fact not delegated but retained. We continue to have the right to provide for our sustenance, to exercise most of our natural right to liberty, and to acquire property. As the town of Boston declared in 1772, “if men through fear, fraud, or mistake, should in [explicit] terms ever give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciat i ~ n . Third, ” ~ ~ the people in a sense continue to exercise their natural liberty in civil society collectively through democratic elections. Government may dispose of the citizens’life and liberty in the service of the ends for which it was established, such as commanding them to fight against foreign invaders or domestic rebels, because the people have consented to its establishment, and, through the election of representatives, to its decisions as well. But why is government needed at all? Why not live in a state of equal liberty outside government? The Declaration says only “to secure these rights.” It implies that rights are insecure without government. The Founders called the condition of man outside of government the state of nature. “In the state of nature,” Hamilton wrote, “every man is, under God, judge, and sole judge, of his own rights and the injuries done him.” No one has authority to tell him what he may or may not do. Yet in this state of complete freedom men cannot live well. Life is precarious. The weak are subject to the violence of the strong, and even the decent may be tempted to be biased in their own favor. Consequently, although all have the right to life, liberty, and the pursuit of happiness, everyone is in fact subject to death, slavery, and misery. They soon join together to form a government for the sake of ”moral security for our lives and properties, which we are entitled to, and which it is the primary end of society to bestow.”54

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In a 1773 sermon, Simeon Howard, a Massachusetts preacher, gives a particularly clear explanation of the movement from nature to civil society: In a state of nature, or where men are under no civil government, God has given to everyone liberty to pursue his own happiness in whatever way, and by whatever means he pleases, without asking the consent or consulting the inclination of any other man, provided he keeps within the bounds of the law of nature. . . .This however is not a state of licentiousness, for the law of nature, which bounds this liberty, forbids all injustice and wickedness, allows no man to injure another in his person or property, or to destroy his own life. But experience soon taught that, either through ignorance of this law, or the influence of unruly passions, some were disposed to violate it, by encroaching upon the liberty of others; so that the weak were liable to be greatly injured by the superior power of bad men, without any means of redress. This gave birth to civil society, and induced a number of individuals to combine together for mutual defense and security; to give up a part of their natural liberty for the sake of enjoying the remainder in greater safety; to agree upon certain laws among themselves to regulate the social conduct of each individ~al.~’

The state of nature is an ill condition because of the viciousness in human nature. The preachers of the founding era, as well as the politicians, emphasized man’s natural propensity for immorality.James Wilson observed in a widely read essay: “A very little share of experience in the world-a very little degree of knowledge in the history of men, will sufficiently convince us, that a regard to justice is by no means the ruling principle in human nature.”56Even that believer in progress, Thomas Paine, held that government was necessary “to supply the defect of moral virtue”: “Government, like dress, is the badge of lost innocence. . . . For were the impulses of conscience clear, uniform, and irresistibly obeyed, man would need no other lawgiver.”57 On the other hand, the Founders did trust enough in human nature to believe in what they called republican government (we call it democracy). They knew that democratic government requires greater public-spiritedness and self-restraint than any other form. For when the people hold political power in their own hands, the absence of personal self-restraint will be quickly translated into the absence of political self-restraint. At that point, as Madison observes, “nothingless than the chains of despotism can restrain them from destroying and devouring one another.”58For this reason, the

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Founders devoted considerable effort to the formation of public morality, through both public and private institutions. The past century has seen an extraordinary degree of naked with respect to the selfishness inherent in human nature. A good example may be found in historian Richard Hofstadter, who rejects the Founders’ sober assessment of human nature: They had no hope and they offered none for any ultimate organic change in the way men conduct themselves. The result was that while they thought self-interest the most dangerous and unbrookable quality of man, they necessarily underwrote it in trying to control it [by protecting the rights of private property].

Hofstadter’s alternative to the Founders was his faith that human nature can experience, perhaps already has experienced, an “ultimate organic change’’for the better. Self-interest, he implies, is but a transitory stage in human development: But no man who is as well abreast of modern science as the Fathers were of eighteenth century science believes any longer in unchanging human nature. Modern humanistic thinkers who seek for a means by which society may transcend eternal conflict and rigid adherence to property rights can expect no answers [in the Founders’ political the~ry].’~

One might have thought that the unprecedented brutality of twentiethcentury politics would have exploded Hofstadter’s quaint neo-Mamist faith that societywill one day “transcendeternal conflict.”In this light,James Wdson’s dry understatement just quoted describes the experience of modern times far more accurately: “a regard to justice is by no means the ruling principle in human nature.” The seltish passions that display themselves in the state of nature have not been, and, going by the available evidence, never will be, overcome by historical progress. RIGHTS ALIENABLE AND INALIENABLE Human beings set up government to defend their lives, liberties, and properties from the depredations of others. A clear statement of this is found in an antifederalist writer, “Brutus,”in 1787:

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In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more crafty and designing. In this state of things, every individual was insecure; common interest therefore directed, that government should be established, in which the force of the whole community should be collected, and under such directions, as to protect and defend everyone who composed it.60 Both sides in the debate over the U.S. Constitution in 1787 shared the political theory of the Declaration of Independence. Their disagreement was solely over what institutional arrangements would best preserve the rights of mankind on the basis of the consent of the governed. I n The Federalist, James Madison, agreeing with the statement just quoted from “Brutus,” speaks of “a state of nature where the weaker individual is not secured against the violence of the stronger.” I n this state “even the stronger individuals are prompted by the uncertainty of their condition to submit to a government which may protect the weak as well as themselves .”61 In the state of nature each individual had to judge and punish injuries against him- or herself or others. That is the main job of government. But in order to do so, government must restrict to some extent the freedom of the natural state. “Brutus”writes: “To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order that what remained should be This is tricky. In his letter transmitting the proposed Constitution to the Confederation Congress, Washington wrote, “Individuals entering into society, must give up a share of liberty to preserve the rest. . . .It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.”63If too much liberty is ceded, the end of government, which is to protect liberty, will be thwarted. “Brutus” and Washington are saying that individuals surrender some of their liberty to government when it is founded. Yet the Declaration of Independence says that the right to liberty is inalienable. How can these two claims be consistent? T h e answer is that liberty is in one sense inalienable, and in another sense alienable. The distinction between rights that are given up and rights that are retained is clear enough. One can easily see that religious convictions may

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never be a matter for government to control. The New Hampshire constitution explains: When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others. . . . Among the natural rights, some are in their very nature inalienable, because no equivalent can be given or received for them. Of this kind are the rights of c o n ~ c i e n c e . ~ ~

The Massachusetts town of Stoughton speaks of the need for a Bill of Rights to define and explain “the inherent and unalienable rights of conscience and all those alienable rights that are not necessary to be given up into the hands of government.” Stoughton also spoke of “the equivalent that individuals ought undoubtedly to receive from government for relinquishing a part of their natural and alienable Yet there seems to be a difficulty with regard to the rights of life, other aspects of liberty, and property. In the Declaration of Independence, all the natural rights are said to be inalienable. But George Washington, New Hampshire, and the town of Stoughton say that some natural rights are alienable. We do give them up (“alienate” them), at least in part, to government. The government has the authority to order its citizens to risk their Ziwes fighting the enemies of the country, to limit their Ziberty by doing whatever the law orders them to do, and to give up some of theirproperty in taxes. One British critic of the Declaration’s assertion of inalienable rights pointed out quite reasonably that “Every law is an abridgement of man’s liberty.”66 In spite of these admissions, Boston’s Rights ofthe Colonists explains the sense in which all the natural rights are inalienable: In the state of nature, every man is under God, judge and sole judge, of his own rights and the injuries done him: By entering into society, he agrees to an arbiter or indifferent judge between him and his neighbors; but he no more renounces his original right, than by taking a cause out of the ordinary course of law, and leaving the decision to referees or indifferent arbitrations. In short, it is the greatest absurdity to suppose it in the power of one or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights, when the great end of civil government from the very nature of its institution is for the support, protection, and defense of those very rights: the principal of which, as is before observed, are life, liberty, and property.

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If men through fear, fraud, or mistake, should in [express] terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutelyvacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift, and voluntarily become a slave.67 No one may permit government to kill him, to enslave him, or to confiscate his property, except as restitution for injuries committed, or, in an extreme case, for the preservation of the whole. Yet we do give up some freedom of action for greater security for all our freedoms. When the young are drafted into the army in time of war, they risk death for the good of all, which is the preservation of one’s own life and liberty, as well as that of all citizens. We accept some restraints on the liberty we had in the natural state-although not to the point of enslavement-for the sake of greater security for the liberty of all. We give a portion of our property for greater protection of the right of acquisition. As long as government promotes the common good of the society, by protecting the life, liberty, and property of the people, its constraints on liberty in fact enhance the actual liberty we enjoy. When tax revenues pay the salaries of judges, and when lives must be risked for the sake of national security, property and life are being secured, not curtailed. Taxation to subsidize well-to-do farmers or businesspeople, or those who choose not to work, is another matter altogether. Several state constitutions, for example North Carolina, explicitly forbid the sustenance of one class of citizens at the expense of others: ““10 man or set of men are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services.”68 Today we are accustomed to saying that among the things that government ought to do is to protect civil rights. Civil rights are said to belong to minorities, and they are sometimes called minority rights. This view is very different from that of the Founders. For them, “civil rights” sums up what government is all about. Natural rights, which are insecure, must be turned into civil rights, secured by the force of the community. That is why the Declaration says, “to secure these rights, governments are instituted among men.” “Civil liberty is only natural liberty modified and secured by the sanctions of civil society,” said Hamilton.69 Civil rights are neither minority rights nor majority rights, but rights that belong to every citizen. The most urgent civil rights to be protected are life, liberty, and property. An effective criminal law and a strong army are the principal means

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to that protection. A society that denies equal protection of the laws to some citizens on the grounds of race violates the civil rights of those citizens. But a society that fails to provide basic protection internally against crimes against persons or property, or externally against the aggression of foreign powers, violates the civil rights of everyone.

THE CONSENT OF THE GOVERNED The first way, then, by which the rule of some men over others can be made compatible with the equal rights of all, is for individuals to retain as much of their natural liberty as possible, and for government to protect that liberty. This is one part of what the Founders meant by liberty or free government. The second way, and the second part of liberty, is to ground government on the consent of the people. This consent has two aspects: consent in establishing government (the social compact) and consent in its operation (representation, or democratic government). Consent is just another name for agreement or choice. Entering society by free choice presupposes and expresses the natural liberty of the people. When we do give up some of our liberty and property, we must do so freely. Americans called this choice to form a government a social compact. The Massachusetts constitution of 1780 included an account of this idea: The end o f . . . government, is to secure the existence of the bodypolitic; 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. . . .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

The term “social compact”was used in a second sense in colonial days, to name the agreement between the rulers and the people to rule under certain conditions and to obey under certain conditions. This second meaning was not much used during the American Revolution, because of the priority of the idea that the people retain their ultimate sovereignty According to David Ramsay,whose history of the revolutionwas written during the founding era: “The far-famed social compact between the people and their rulers did not apply in the United States. The sovereignty was in the

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Individuals, not groups or classes, covenant with one another. That is because individuals, not societies, are the ultimate possessors of the equal right to liberty. There is no room in the Founders’ political theory for an “organic”society whose authority precedes the free choice of individuals. Properly speaking, societies are formed by individuals freely agreeing to join together. Government is built on this foundation. Whatever rights government possesses derive from the free grant of the individuals who make up the people. The rights of society begin from, and are limited by, the rights of individuals. The Declaration speaks of the necessity for “one people,’’ the Americans, to separate itself from another people, those of Britain. What makes the American people distinct from the British? Answer: choice and choice alone. In the first draft of the Declaration, Jefferson wrote that “we [Americans and Englishmen] might have been a free and a great people together.”72The Declaration’s text as adopted speaks of “our British brethren” and our “consanguinity”(common blood) with them. Ethnicity alone does not define a people; one people became two when the United States chose to secede from the British empire. One might have thought that the American “people” of that day was constituted by its common racial ancestry, its (mostly) common Protestant religion, its common language, and its distance from the mother country. The Declaration makes clear that none of these things are decisive. We might have remained one people with the British. We would have become one people together with the Canadians, most of whom were Catholics and of French ancestry, if they had accepted the invitation of Congress to join the United States in 1774.73 One might think that since all human beings have equal rights, a free constitution of government must include all mankind, or at least all those who happen to be physically present in British North America, including Indians, slaves, and foreigners. In our time conservatives sometimes argue that the idea of natural rights requires America to accept any prospective immigrant and give him or her the full benefits of citizenship without question or delay. This was not the Founders’ view. What can be accomplished by a political society is limited to a discrete portion of humanity. A government over too large an area, or over peoples too disparate, could not succeed in rescuing people from the miseries of the state of nature. Citizenship must remain exclusive. The Declaration proclaims the rights of humanity, but in the name of the separate political existence of “one people,” not the whole world.

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When a people forms, or breaks off, from a previously existing people, it necessarily excludes all who are not part of it. When the Constitution of 1787 was being considered for ratification, there was a real possibility that Rhode Island and perhaps other states might refuse to join the new union. They would then have remained outside the “people”that was then in process of re-formation. Madison commented on the situation that would have resulted: “although no political relation can subsist between the assenting and dissenting states, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights ofhumanity must in all cases be duly and mutually r e s p e ~ t e d . We ” ~ ~turn now to a more precise account of the meaning of consent in the Declaration. We have already quoted the Declaration’s summary of the movement from the state of nature to civil society: “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” A later passage of the Declaration clarifies the idea of consent. The British king has prevented some American colonial legislatures from being elected on a regular basis, “whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the mean time exposed to a l l the dangers of invasion from without, and convulsions within.” That the legislative power returns to the people means that the people originally possessed that power-in the state of nature, prior to the social compact that specifies who shall exercise that lawmaking power in the state of civil society. The king’s suspension of colony legislatures returns the people to a state of nature. That is a state of dangers, in which there is no civil law to protect citizens against violence, foreign and domestic. The Founders were aware that many, in fact most, governments in the world do not rest on the consent of the governed. That is why the Declaration speaks of the “justpowers of government” arising from consent. Because the people are the source of political power and retain their inalienable rights, all the powers of government are delegated by the people. To illustrate this idea, the Founders frequently compared the people to a fountain from which political power flows: [Tlhe majority of the people, wherein the supreme power is vested, has a control over all the delegated powers of the state; or in other words, all persons entrusted with any of the delegated powers of the state are servants of the people and as such are elected by them and accountable to them and removable for breach of trust, incapacity, or misbehavior.

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. . . [Alll the delegated powers of the state are to be considered as so many streams issuing out or flowing from the grand fountain of supreme power.75 The Declaration uses the term “consent” in two other places. As in the Stoughton statement just quoted, these other instances in the Declaration imply the need for consent not only in founding government but also in its operation once founded: “He has kept among us, in times of peace, standing armies, without the consent of our legislatures.” And the king has approved of Parliament’s “pretended legislation . . . imposing taxes on us without our consent.” The raising of armies and the imposition of taxes are major acts of government. The Declaration implies that no such act should be undertaken without the consent of the legislatures. What is meant by “legislatures”is clear from the second quotation: when the Declaration says taxes have been imposed without our consent, it means without the consent of our elected representatives.These two statements explain why the Declaration speaks of a people’s “right of representation in the legislature, a right inestimable to them and formidable to tyrants only.” Some scholars have overlooked this second kind of consent in the Declaration-the consent that requires democratic institutions. They assume that as long as governments “secure these rights” and derive their just powers from the consent of the governed at the time of their institution, any form of government is permissible-even monarchy.76Historian Edmund Morgan writes, “The Declaration did not go as far as Paine had gone [in Common Sense]:it was directed only against the ‘present’king of Great Britain and would not have precluded a monarchical form of government for the United States.”77 There is an element of truth in this view, for there may be circumstances when an unrestrained people might be unable to endure or sustain free government. In 1787 Madison observed that “if the state of Rhode Island were separated from the Confederacy and left to itseff, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called Americans of the founding period frequently spoke of “the genius of the people of America,”79by which was meant their enlightenment, their moral restraint, and their spirited republican character. This “genius,” Americans knew, was not shared by all peoples. Gouverneur Morris, the American ambassador to France during the French Revolution, saw clearly

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that the success of the American Revolution, and the failure of the French, were closely related to the differences in the characters of the two peoples.80 Nevertheless, it is always true that the government most consistent with the equal liberty we are born with is democracy, or, more precisely, government by representatives elected by the people. So whenever circumstances are suitable, when the people are sufficiently enlightened and have the right virtues, as Jefferson said, “the republican is the only form of government which is not eternally at open or secret war with the rights of mankind.”81Thus the idea of democratic (or republican) government, no less than limited government, arises from the equal natural liberty of mankind. One might object, as scholars such as Martin Diamond argue, that the language of the Declaration seems to have no objection to monarchy as such. It appears that the British king is condemned, not because he is a king, but because he is a bad king. The implication seems to be that a nontyrannical king would be perfectly compatible with the political principles of the Declaration. In this view, there is nothing in the natural rights theory that necessarily leads to democratic government, no matter what Jefferson may have thought. Historian Edmund Morgan believes that the Americans discovered the idea of human equality-as he presents it, they “unwittingly” stumbled into it-only when Paine pointed it out to them in 1776. Morgan adds that it meant nothing more politically than that America was entitled to a “separate and equal station” among the nations of the earth.82Martin Diamond argues that the Declaration provides “no guidance”with respect to whether government should be democratic, aristocratic, or monarchical, as long as it “secures these rights.” For the Declaration seems to say that the people may set up any kind of government they please, “laying its foundations on such principles, and organizing its powers in such forms, as to them shall seem most likely to effect their safety and happiness,” as long as it secures the rights to life, liberty, and the pursuit of happiness.83 Before we travel very far down this road, we should remind ourselves that by 1776 nearly every Founder was endorsing government by representatives elected by the people-what they called a republican form of government, and what we today call democracy. Already in 1765 the Massachusetts Assembly resolved, in passages already quoted above, that all men have inalienable rights; what follows from this, says the Assembly, is “That no man can justly take the property of another without his consent; and that upon this original principle the right of representation in

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the same body, which exercises the power of making laws for levying taxes, . . . is evidently founded.”84 The emphasis in the official American documents of the 1760s was on the principle that consent is required for taxation. If property is to be given to government, we ourselves-meaning, practically speaking, a majority of our representatives-must make that grant. In the great debate over the Stamp Act, Americans returned again and again to the same point, here expressed with suitable indignation by John Dickinson in his widely read “Letters from a Farmer”: If they have any right to tax us-then, whether our own money shall continue in our own pockets or not, depends no longer on us, but on them. “There is nothing which” we can call our own; or, to use the words of Mr. Locke--“What property have we in that which another may, by right, take when he pleases to himselQ” . . . Those who are taxed without their own consent, expressed by themselves or their representatives, are slaves. We are taxed without our own consent, expressed by ourselves or our representatives. We are thereforeSLAVES.

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Either a man disposes of his own property and liberty or he does not. Within civil society, representative government alone saves a person from slavery, dependence on the will of another. This argument establishes, at a minimum, that the people have a right to participate in that part of government that raises taxes. If some parts of government are not elected-such as a hereditary king and lordsthere must be an elected part whose approval is necessary for taxation. But the colonists went fbrther. The link between taxation and representation was seen, by the same logic, as a link between representation and all lawmaking. If the meaning of slavery is to be subject to the will of another, then forcing someone to do something against his or her will deprives that person of his or her freedom no less than taking this person’s property for taxes against his or her will. All laws tell people what they must do, on pain of punishment if they refuse. Accordingly, Virginia’s 1764 protest against the Stamp Act stated that the “natural and civil rights” of Virginians would be violated “if laws respecting the internal government and taxation of themselves are imposed upon them by any other power than that derived from their own consent.”86Not just taxation but “internal government” must be by the consent of the governed. So the popular part of government must give its approval to all laws.

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Dickinson tied together taxation and lawmaking in general by speaking of the expense incurred in obeying any law: “An act of parliament, commanding us to do a certain thing, if it has any validity, is a tux upon us for the expense that accrues in complying with it.”87But it is not a matter of expense only, but of liberty. Although the Americans spoke more of taxes than of laws, they were never willing to say that taxation alone required their consent, while other laws could r i g h t f l y be imposed without their consent by aristocrats or kings. The Continental Congress of 1774 declared: That the foundation of English liberty, and of a l l free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented . . .in the British Parliament,they are entitled to a free and exclusive power of legislation in their several provincial legislatures,where their right of representation can alone be preserved, in all cases of taxation and internal polity. The scope of colonial legislation is in fact entirely comprehensive, since, as the colonists cautiously but carefully imply, even Parliament’s “regulation of our external commerce” is binding only because the American provincial legislatures “cheerfully consent” to them.88 The argument for popular participation in the legislature would still leave open the possibility of mixed government, in which elements based on wealth or heredity or virtue could share political power with the popular element. The difficulty with mixed government, however, is that it allows the will of unelected officials to be equal to, or to thwart, the will of elected representatives, if the consent of both is necessary for the approval of policy. So when the Founders spoke of the British arrangement, they generally interpreted it in the way the radical British Whigs did: the heart of the government was Parliament, by which was meant primarily the House of Commons (not the Lords); the king, while exercising real powers, served under, and at the pleasure of, the Laws of the Commons. In 1774 Jefferson said of the British king: “he is no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great machine of government, erected for their use, and consequently subject to their ~uperintendence.”~~ Similarly, James Wilson emphasized the “mild but powerful influence, which the commons of Great Britain possess over the crown. . . .The proudest ministers of the proudest monarchs have trembled at their censures; and have appeared at the bar of the house, to give an account of their conduct, and

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ask pardon for their faults.” The constitution of Britain enables the people to make sure that their obedience to the king is always “willing,”for if they are ordered to do that which they do not wish to do, they have constitutional means to strike back at “arbitrary power.”9oJohn Adams said, “the British constitution is nothing more nor less than a republic, in which the king is first magistrate. This office being hereditary, and being possessed of such ample and splendid prerogatives, is no objection to the government’s being a republic, as long as it is bound by fmed laws, which the people have a voice in making, and a right to defend.” After the English Revolution of 1689, this meant, practically speaking, that the king could be removed by the people for cause. Moreover, says Adams, the king has absolutely no political authority in America. “But allegiance is due . . . to the person of the king, not to his crown; to his natural, not his politic capacity.”” In this light, the British constitution is not really a mixed one, but rather a limited monarchy whose heart is democratic, but which presents itself to the world, misleadingly, as an equal mixture of democracy, aristocracy, and monarchy. What Jefferson, Wilson, and Adams were describing comes close to what the British government is today, and what it was already tending toward in 1776: the House of Commons, elected by the people, determines all important policy through officials accountable to it alone. Although the pre-1776 Americans paid lip service to a mixed constitution, their hearts and their principles supported representative democracy. In accord with this conviction, when they came to write their new state and federal constitutions, every one of them was based on a strictly democratic or representative foundation. We conclude that the king of Britain was a tyrant, according to the Declaration, not only because his policies were unjust, but because anything he did, contrary to the consent of America’s elected legislatures, was in itself unjust. To the extent the king tried to rule at all, to tell Americans what they must do, without their consent, he acted tyrannically, because he violated the fundamental principle that all men are created equal, which means that the just powers of government can arise only from the consent of the governed. Of the eighteen grievances listed in the Declaration of Independence, the first thirteen are instances of the king denying the colonists’ right to govern themselves by their own elected representatives. The culminating item in this first list is that the king combined with “others”

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(namely, Parliament), “suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.” This was a reference to the infamous Declaratory Act, which stated the heart of the dispute between Britain and America. Britain claimed the right to rule America without its consent, and America claimed the right to self-government as a right grounded in the natural equality of men. We have seen that the colonists loved to quote John Locke on the question of no taxation without representation. It may prove helpful to look at Locke’s own statements on the question we are considering here. For Locke, like the Declaration, seems to say that the people may consent to any form of government at all, as long as it protects their lives, liberties, and estates.92But he qualifies this impression in his discussion of taxation: ’Tis true, governments cannot be supported without great charge, and ’tis fit everyone who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them. For if any one shall claim a power to lay and levy taxes on the people, by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government. For what property have I in that which another may by right take, when he pleases, to himself?93

Like the Americans, Locke is most emphatic on the need for democratic representation when it comes to taxation. Otherwise, Locke appears to endorse the British mixed government of king and Commons (Locke rarely mentions the House of Lords). But the premise of Locke’s argument for representation in taxation implies that all laws, not just tax laws, must receive the consent of the people. This is because of Locke’s broad definition of property. The end of government, Locke says, is “the mutual preservation of their lives, liberties and estates, which I call by the general name, p r ~ p e r t y . ”If, ~~ then, no one can be required to pay out of his estate without his consent, so also by the same reasoning he cannot be required to give up his Zfe or any of his Ziberty without his consent. All laws, not just tax laws, take away people’s “property” in this broad sense, because laws order people to do things they may not want to do and are thereby restrictions on liberty, which, Locke says, is part of a man’s property. Therefore, all laws must be consented to by the people or their representatives. Later Locke makes this conclusion explicit:

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For no government can have a right to obedience from a people who have not freely consented to it: which they can never be supposed to do, till either they are put in a full state of liberty to choose their governments andgovernors, or at least till they have such standing laws, to

which they have by themselves or their representatives, given theirjke consent.95

By the same Lockean logic, one might question not only any form of government lacking a representative assembly elected by the people, but a government that has any nonrepresentative parts. Here is the implicit final step of the colonists’ argument for democratic government. For if an unelected king or nobility is allowed to block legislation or repeals of legislation passed by the people’s representatives, would not that veto be a denial of liberty without the people’s consent? The last obstacle to republican government f d s when this question is answered as it must be on the basis of Locke’s principle that no man may be deprived of his property without his consent. Locke does not go this far in his explicit statements, although he approaches it in his discussion of the limits of royal prerogative. As for America, the consent of the governed must be frequently renewed by elections, and it must be unthwarted by rulers selected by any other means than election or appointment by elected officials. In this way the logic of the equality principle leads unavoidably to the right of the people to rule themselves through representatives elected by themselves. The Massachusetts convention, elected to draw up a state constitution, affirmed “That the government to be framed by this convention shall be a FREE REPUBLIC. Resolved, that it is of the essence of a free republic, that the people be governed by FIXED LAWS OF THEIR OWN MAKING.” The Massachusetts declaration of rights therefore said: “The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent state. . . . In fine, the people of this Commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent.”96Other state constitutions made similar declarations. This is not the Founders’ last word on the subject of consent. The problems of the 1780s, when the defects of democratic government became all too obvious, reminded them that circumstances are not always conducive to democracy. The primary purpose of government is the protection of the rights of mankind, and if democracy cannot provide that protection, there can be no other choice than to abandon democracy for another form of g ~ v e r n m e n tBy . ~ ~1783 Washington was compelled to ask

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whether America “willbe respectable and prosperous, or contemptible and miserable as a nation; . . .whether the Revolution must ultimately be considered as a blessing or a curse.” But Hamilton indicates the solution: the adoption of a novel structure of government, a new national Constitution, that will secure individual rights on the basis of government by consent, will be “most honorable for human nature.”98

THE RIGHT TO REVOLUTION The Declaration of Independence concludes its list of self-evident truths by announcing the right to revolution: That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government,laying its foundation on such principles and organizing its powers in such forms, as to them shall seem most likely to effect their safety and happiness. Once one grasps the principles of just government, the right to revolution follows as a matter of simple logic. Government has a job to do. If it is not doing its job, the people should get rid of it and set up a new one. The alternative is passive obedience to any government however tyrannical. New Hampshire’s constitution explicitly rejected this doctrine of supine acceptance of tyranny and affirmed the right of revolution: [Wlhenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.99 Plainly, the right to revolution does not mean that a minority may overthrow any government, however good and democratic, whenever it dislikes the results of an election or the policies established by elected officials. That would justify the Southern secession of 1861, which was undertaken to protect the future of slavery and the Southern way of life based on slavery. Lincoln rightly argued that if the right to revolution could be exercised whenever a part of the society was dissatisfied with the

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public policy of the majority, anarchy would result.”’ The solution to the insecurity of the state of nature requires that people be compelled to obey the government once they have established it, even and especially if they disagree in particular cases with the decision of the government. But if, in New Hampshire’s words, “the ends of government are perverted, and public liberty manifestly endangered,” revolution would certainly be justified, by either a minority or the majority. Still, these simple and inspiring formulas harbor a tremendous difficulty. The right to revolution, in plain words, is a right to set force against force-ultimately a right to shoot and kill members of the existing government and those who support it. Revolution is not a thing to be undertaken lightly. John Adams exposed this harsh reality when he called revolution “club law.”lol For revolution always returns men to the state of nature during the transition from old regime to new. In such a state the hoped-for security for life and liberty may be shattered by passions unleashed and violence uncontrolled. It is important to understand that, with respect t o first principles, the Founders were profoundly radical men, not the conservatives who some Americans have wished or feared them to be. To be sure, their radicalism was on behalf of “rational liberty.” They had no vain hopes for a transformation of the human condition. But they were prepared to break not only with the European past but with their own colonial past, insofar as it was incompatible with free government. Certainly the American Revolution was a model of sobriety by comparison with the French Revolution. But American loyalists suffered. Property was seized. Hostile social and political pressure led most of them to conceal their sentiments or leave the country. One historian calculates that the American Revolution generated five times the kmigrks per capita (most of whom moved to Canada or Britain) and confiscated almost as much property as the French Revo1ution.l” Up to this point in the second paragraph of the Declaration, the principles of government are affirmed, in Lincoln’s phrase, as “abstract truth, But now the Declaration hesitates, applicable to all men and all acknowledging the need for caution and patience. A voluntary return to the state of nature involves great dangers: Prudence indeed will dictate that governments long established should not be changed for light and transient causes. And accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

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Whether or when to undertake a revolution is not something that principle alone can decide. Only prudence can judge how far “evils are sufferable” in the unique circumstances of a particular time and place. In 1776, when the Continental Congress debated whether to declare independence, several delegates who were warmly attached to the rights of mankind nevertheless opposed the break with Britain. The dispute did not touch on principle, on which most delegates were heartily agreed, but concerned the prudence of undertaking a revolution at that particular time. The most respected of those delegates opposed to independence was John Dickinson, author of the famous “Letters from a Farmer,” from which we have already quoted to illustrate the principles of the Declaration. Dickinson had explained in the “Letters”why revolution ought to be resorted to only with great reluctance: When the appeal is made to the sword, highly probable is it, that the punishment will exceed the offence; and the calamities attending on war outweigh those preceding it. These considerations of justice and prudence will always have great influence with good and wise men.. . . We cannot act with too much caution in our disputes. Anger produces anger; and differences that might be accommodated by kind and respectful behavior may, by imprudence, be enlarged to an incurable rage. . . . When feuds have reached that fatal point, all considerations of reason and equity vanish; and a blind fury governs, or rather confounds all things.lo4

Alive to the mad passions and fatal consequences of war, prudence counsels patience, even in the face of considerable injustice. But the American consensus in July 1776 held that defeating the British threat to colonial freedom was worth the bloodshed that everyone knew would follow. Because he opposed the Declaration of Independence, Dickinson has the reputation of a conservative. If by uconservative”is meant someone who proceeds cautiously when it comes to violent political change, most of the Founders were conservatives. The movement to revolution developed over a period of twelve years or more. But on the principles of political right, Dickinson, like all the leading Founders, was as radical as Jefferson and Paine. He would have had nothing but contempt for today’s “conservative”notion that rights have their source in laws and charters. In his Address to Barbados (1766), Dickinson wrote:

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To talk of your “charter,”gentlemen, on this occasion, is but weakening the cause by relying on false aids. . . . Kings or parliaments could not give the rights essential to happiness, as you confess those invaded by the Stamp Act to be. We claim them from a higher source-from the King of kings, and the Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence,which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power, without taking our lives. In short, they are founded on the immutable maxims of reason and justice.105 O n the occasion of Dickinson’s death, Jefferson, a stickler for revolutionary orthodoq said, “Among the first of the advocates of the rights of his country when assailed by Great Britain, he continued to the last the orthodox advocate of the true principles of our new governrnent.”lo6 Dickinson’s opposition to independence in 1776, then, was not due to any disagreement on principle. His reservation was based entirely on the kind of prudential consideration quoted above. George Washington expresses well why most Americans rehsed to follow Dickinson in this judgment: The time is now near at hand which must probably determine whether Americans are to be freemen or slaves; whether they are to have any property they can call their own; whether their houses and farms are to be pillaged and destroyed,and they consigned to a state of wretchedness from which no human efforts will probably deliver them. The fate of unborn millions will now depend, under God, on the courage and conduct of this army--Our cruel and unrelenting enemy leaves us no choice but a brave resistance, or the most abject submission; this is all we can expect-We have therefore to resolve to conquer or die.lo7 There is a larger point here. It is not enough to know the principles of just politics. A politician who tries to follow the principles in ignorance of circumstances may bring about political disaster instead of political salvation. ill always be needed to deT h e judgment of a prudent man on the spot w termine how far to press for the implementation of principle in a particular case. The principles of the Declaration-equality, rights, consent-are inflexible. There is a single standard of right, and that standard is eternally the same. Jefferson, a great believer in progress, looked forward to a world in which nearly everything would be constantly improving. But with respect to

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political right, no progress was possible: “Nothing then is unchangeable but the inherent and unalienable rights of man.”lo8 This rigidity of principle, however, creates a challenge for the statesman. In the real world of politics, circumstances always limit what can be done. The principles of perfect justice may be obvious to the intellect, but the attempt to implement them here and now, immediately and completely, may generate death, destruction, and misery. The prudence of the statesman must always be free to judge the applicability of principle in any given circumstance. Not every country at every moment is capable of becoming a democracy that protects the rights of mankind, and the attempt to democratize may rather lead to tyranny and death. A revolution for the rights of man may bring great blessings to one people, while another revolution may rivet the chains of despotism more firmly in place. The experience of France in the 1790s, where a revolution for liberty culminated in a reign of terror and a substantial decline in popular freedom, confirmed this melancholy truth in the minds of the most thoughtful Founders. “I hold with Montesquieu that a government must be fitted to a nation as much as a coat to the individual, and consequently that what may be good at Philadelphia may be bad at Paris and ridiculous at Petersburg,” wrote Hamilton.1o9Their dealings with the problem of slavery within America reflect the same awareness of the limits that circumstances place on the achievement of perfect justice. NATURE, REASON, AND G O D We began this chapter with Congress’s choice to give reasons rather than merely to assert its will when it declared independence. These reasons prove to rest on nature, the inalienable rights of human nature, and “the laws of nature and of nature’s God” from which those rights arise. The truths of human nature are called “self-evident.”This does not mean that they are obvious to everyone however thoughtless or uneducated. But they are understood by those who see what human nature is and what rights and obligations inhere in that nature. Such knowledge is the discovery of human reason. The Declaration says that mere reason finds the basis of government in the nature of man. Reason is something that all human beings possess. Anyone, at any time, can, in principle, understand the truths of the Declaration. It is a question of seeing for oneself.

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All previous politics, in contrast, were based on authority, not reason.

Governments had grounded themselves on the sacred teachings and wisdom of the ancestors, or the w ill of God, or the will of a despot. The command of some other being, higher than oneself, was the source of rule and law. One’s own reason had to defer to those, men or gods, whose will was greater than ours. The idea of reason as the basis of politics is not new. As far as we know, the ancient Greeks were the first to discover it. In Plato’s Republic, when Socrates challenged the authority of father Cephalus and of the poets who told tales about the afterlife, he put reason in charge of constructing the best conceivable political order.l1° Ever since, there had been a lively but politically weak cohort advocating the reform or new founding of politics on the basis of reason’s insights. But only in the American Founding did reason’s “self-evident truths” make themselves the main authority for the creation of a new nation. When reason claims to know the principles of just government, it means its discovery to be permanent. For what is meant by nature is the abiding character of a thing. Human laws and customs change, but human nature today is just what it was in 1776 or 500 B.C. Paradoxically, America’s uniqueness lies in its being the first country to claim to be based on universal principles discovered by the reason that all human beings possess. Other nations have their particular God or gods and their traditions. America’s basis is the rights held by all human beings in all times and places. We saw in the quotation above from Hofstadter that many intellectuals today no longer believe in a permanent nature of things. From the same standpoint, Gordon Wood launched his stinging attack on students of Leo Strauss who wrote on the American Founding.l’l If today’s intellectuals find it hard to take seriously the idea of a permanent human nature, conservatives have their own reasons for keeping the rights of man at arm’s length. In his famous speech defending the American colonies, Edmund Burke listed several reasons for the American attachment to liberty, including their English heritage, their religion, education, and remoteness from the mother country. Not one word is said of their attachment to the ideas of the equal rights of mankind. In a revealing contrast, South Carolinian David Ramsay, in his 1789 history of the revolution, follows Burke’s list almost to the point of plagiarism; but Ramsay does not hesitate to add that the colonists’ favorite readings “inspired a warm attachment both to the civil and religious rights of human nature,” and that this

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became their “short but substantial”political creed.l12 Burke was well disposed toward America, but he tacitly disapproved of the Americans’ loud recourse to the rights of man-the heart of the Declaration of Independence. H e feared that these rights would be misunderstood, especially in Europe, without the mitigation of American prudence. The experience of the French Revolution proves that Burke’s concern was not misplaced. In fact, as Leo Strauss wrote, the idea of natural right has been political dynamite since it was first articulated by Socrates.l13Any standard of right outside of one’s tradition can explode that tradition, as soon as enough people in important positions come to believe in the rival standard. Teachers of natural right, aware of this fact, have generally presented their views with caution, so that they would not be misused to overthrow governments that were better than anything likely to replace them. Writers as diverse as Plat0 and Blackstone taught that there is a natural standard of right to judge existing governments, but neither writer explicitly advocated a right of revolution. Blackstone indeed implicitly acknowledges the right while criticizing Locke for spelling it Burke’s silence on the subject in his 1775 speech, and his famous denunciation of the rights of man in his later attack on the French Revolution, set the example for many nineteenth-century European conservatives. They fled to prescriptive tradition to check the revolutionary ardor of those whose demands for perfect justice in the name of equality were destroying civilization and not in fact securing the rights of mankind. Conservatives today, even in America, often share the same Burkean reservation about natural rights. They prefer to deny all rational standards of right, rather than risk the left’s appropriation of rights language for its own partisan purpose^.'^^ Reason’s insight into human nature may be dangerous, but where else in the modern world can one turn? Why should we respect “our”tradition more than another? An earlier alternative was religion. In pre-Christian times the gods were generally thought to be the source of a community’s law. The Israelites’ law came directly from God on Sinai. Among the Greeks, the Cretans held that their laws came &om Zeus, as the Spartan laws came from Apollo.l16 For medieval Christians, God or the Church could and did sanctify the rule of kings or people. Few educated men of the Founders’ generation-including the preachers-believed that civil law ought to depend on the Bible. We will make clear later their reasons for holding this view. But without a religious basis, of what worth is tradition? Without God, the traditionalist conservative proves to be a mere positivist-someone who believes that law and

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custom alone define right and wrong. Whatever the law happens to declare must be obeyed. (ChiefJustice William Rehnquist holds this view, as Harry Jaffa has noted.)l17But why should a law be obeyed just because it has been posited? Positivists of this sort are walking on air. Although they were divided on many lesser questions, nearly all the prominent Founders refused to follow Burke’s path, however “conservative’’ they may have been. James Wilson rejected Burke’s traditionalism in these terms: “Man,” says Mr. Burke, “cannot enjoy the rights of an uncivil and of a civil state together.” By an “uncivil” contradistinguished from a “civil)) state, he must here mean a state of nature: by the rights of this uncivil state, he must mean the rights of nature: and is it possible that natural and civil rights cannot be enjoyed together? Are they really incompatible? Must our rights be removed from the stablefoundation of nature, and placed on the precarious andJIuctuating basis of human institution? Such seems to be the sentiment of Mr. Burke.’18

Wilson prefers the standard of nature because it is stable. It always endures. Man’s nature never changes, and so neither do man’s rights. Human institutions, however, come and go. If government gave us our rights, government could also take them away. The Founders believed that reason could and did discover the foundations of political right. But our account of the Declaration would be incomplete if we left it at that. For Americans also believed that God’s authority supports the same political principles. Certainly most of the Protestant Christians among them-in those days most Americans were Protestants-believed that their religion supported free government and the rights of mankind. But so also did most American Catholics and Jews. Christians and Jews in the founding generation generally held that God speaks to man in two ways: through his revealed word, found in the Bible, and through human reason, which is the natural light that God implants in human nature. As the Creator of nature, God is the author of the law of nature, and in this capacity he was often called the “God of nature” in the Declaration as well as in sermons. One preacher, in a striking phrase, called the law of nature “the constitution of the God of nature.”l19 In Jefferson’s original rough draft of the Declaration, the only mention of God was in the phrase, “the laws of nature and of nature’s God.” Congress added three further references to God. In place of Jefferson’s original statement “that all men are created equal and independent, that

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from that equal creation they derive rights inherent and inalienable,” Congress (or other members of the drafting committee) wrote, “that all men are created equal, that they are endowed by their Creator with certain inalienable rights.” Similarly, in the last paragraph, where Jefferson’s draft never mentioned God, Congress added that the representatives in Congress were “appealing to the supreme judge of the world for the rectitude of our intentions.” At the end of the Declaration, just before the famous conclusion-“we mutually pledge to each other our lives, our fortunes, and our sacred honor”-Congress inserted, “with a firm reliance on the protection of divine providence.” The delegates evidently wished to tie their action more firmly than Jefferson did to the vigorous faith shared by most Americans. One feels the sanctity of the rights of human nature more vividly when God himself is said explicitly to be their source (“endowedby their Creator”). In Jefferson’s draft the God of nature, as the author of the laws of nature, is only the implicit source for the equal rights of all. And there is comfort when “the supreme judge of the world” and “divine providence” can be appealed to and relied upon by those driven to a painful break with the English, from whom most Americans then were descended. The ideas of divine providence and of God as creator and judge are recognizably Christian. But these ideas are also found in the Jewish and Islamic traditions, as well as in nonbiblical theism. They can even be found in the writings of the ancient philosophers. The Declaration remains carefully and properly silent with respect to themes specific to biblical religion, such as the chosen people, grace, resurrection, and salvation through faith and repentance. Although the Bible, in the Founders’ reading, supports the principles of the Declaration, those principles apply to all Americans, and all human beings, regardless of their religion. Nevertheless, it would be wrong to reduce the Declaration to a document of mere reason. Reason alone can perhaps establish the existence of a Supreme Being (the God of nature), a physical and moral law originating in that Being, and a world order overseen in a general way by his providence. But mere reason rarely or never supplies the moral strength of the believer. Washington observed: “Whatever may be conceded to the influence of education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”120Although the revolution on behalf of the rights of mankind was eminently reasonable, that revolution would never have been possible without the profound faith that sustained it from beginning to end.121

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NOTES 1. This chapter has profited from the scholarship of Harry V. Jaffa, especially from his writings published after his “turn” in the mid-l970s, such as American Conservatism and the American Founding (198% repr. Claremont, Calif.: Claremont Institute, 2002); “Equality, Liberty, Wisdom, Morality and Consent in the Idea of Political Freedom,” Interpretation 15, no. 1 (January 1987): 3-28; and A New Birth ofFreedorn:Abraham Lincoln and the Coming ofthe Civil War (Lanham, Md.: Rowman & Littlefield, 2000) (which contains extensive discussions of the principles of the founding). 2. John Adams, Letter to Abigail Adams, July 3, 1776, in Works ofJohn Adams, ed. Charles F. Adams (Boston: Little, Brown, 1854), 9:420. 3. Adams, Letter to Abigail Adams, July 3,1776, in Works, 9:418. 4. Otis, “The Rights of the British Colonies, 1764,” in Pamphlets ofthe American Revolution, ed. Bernard B d y n (Cambridge: Harvard University Press, 1965), 427. The Latin phrase, from Juvenal, Satires, 6:223, reappears in Arthur Lee, Answer to Considerations on . .. South Carolina, 1774, in The Nature of Colony Constitutions,ed. Jack I? Greene (Columbia:University of South Carolina Press, 1970), 163. 5. New York Constitution, Art. 38, in The Federal and State Constitutions, ed. Francis N. Thorpe (Washington, D.C.: Government Printing Office, 1909), 5:2636. Alexander Hamilton et al., The Federalist, ed. Clinton Rossiter and Charles R. Kesler (New York: New American Library, 1999), 299. 6. Merrill D. Peterson, ed., Writings (New York Library of America, 1984), 493. 7. Edmund S. Morgan, The Birth ofthe Republic (3rd ed.) (Chicago: University of Chicago Press, 1992), 66. 8. Massachusetts Assembly, Instructions to Jasper Mauduit, in Jasper Mauduit, Jasper Maudit, Agent for the Province of Massachusetts Bay, 1762-1 765 (Boston: Massachusetts Historical Society, 1918) (Collectionsofthe Massachusetts Historical Society, no. 74), 39, quoting Locke, Second Treatise,sec. 22. 9. Resolutions of the House of Representatives of Massachusetts, October 29,1765, in Philip B. Kurland and Ralph Lerner, The Founders’ Constitution,vol. 1:Major Themes (Chicago: University of Chicago Press, 1987), 629. 10. Continental Congress, Declaration and Resolves, 1774, in Kurland and Lerner, Founders’ Constitution, 1:2. 11. I quote throughout from the version of the Declaration approved by Congress on July 4 and printed by John Dunlap on the same day. In this as in all quotations from original sources and documents, I have sometimes modernized spelling, capitalization, and punctuation. 12. Letter to Henry Lee, May 8,1825, in Peterson, Writings, 1501. 13. Goody PetroneUi, quoted in WashingtonPost, February 5,1987. Thanks to Joseph M. Bessette for the reference.

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14. Eric Foner, “Tom Paine’s Republic,”in The American Revolution, ed. Alfred

F. Young (Dekalb: Northern Illinois University Press, 1976), 207. Rufus Choate, letter to E. W. Farley, Aug. 9,1856, quoted in Carl Becker, The Declaration $In-

dependence (1922; repr. New York Knopf, 1948), 201,244. Pauline Maier,American Scripture: Making the Declaration ofIndependence (New York: Knopf, 1997), 192. 15. Virginia Declaration of Rights, 1776, Kurland and Lerner, Founders’ Constitution, 1:6; Jefferson’s rough draft of the Declaration, in Papers of ThomasJefuson, ed. Julian P. Boyd (Princeton, N.J.: Princeton University Press, 1950- ), 1:423. 16. Robert W. Johannsen, ed., The Lincoln-Douglas Debates (orig. pub. 1859; New York Oxford University Press, 1965), 45,215-16,219-20. Jefferson’s statement is from Notes on the State ofVirginia, 1782, Query 18, in Peterson, Writings, 289. 17. Thomas G. West, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins ofAnzerica (Lanham, Md.: R o m a n & Littlefield, 1997). 18. “Men” and “mankind” in “Address to the People of Great Britain,” 1774, in Journals ofthe Continental Congress,ed. Worthington C. Ford (Washington, D.C.: Government Printing Office, 1904-37), 192, 89. “Man” and “humanity” in “Manifesto,” October 1778, in Journals of the Continental Congress, 12:1080,1082. “Human nature” in David Ramsay, History ofthe American Revolution (orig. pub. 1789; Indianapolis: Liberty Classics, 1990), 1:29. “Human rights” in John Jay, Letter to President of Manumission Society, June 1788, in Kurland and Lerner, Founders’ Constitution, 1:550. “Rights of nature” in John Adams, “Novanglus,”in Works, 4:124. 19. “The Farmer Refuted,” in Papers ofAlexander Hamilton, ed. Harold C. Syrett (New York Columbia University Press, 1961-79), 1:104. 20. Notes on Virginia, Query 6, in Peterson, Writings, 185-86. 21. Rights of the Colonies, in Bailyn, Pamphlets, 420,439. 22. Rights of the Colonies, 440. 23. “Declaration on Taking Arms,” 1775, in Journals ofthe Continental Congress, 2:140. 24. Lincoln, Speech on Dred Scott, June 26,1857, in Collected Works ofAbraham Lincoln, ed. Roy T. Basler (New Brunswick, N.J.: Rutgers University Press, 1953), 2:405. 25. Edward J. Erler, TheAmerican Polity (New York: Crane Russak, 1991), 10. 26. Letter to Roger Weightman, June 24,1826, in Peterson, Writings,1517.The saddled-and-booted image had been used in a speech by Richard Rumbold on the occasion of his execution in 1685 for plotting against the life of King Charles I1 (Douglass Adair, Fame and the Founding Fathers [New York Norton, 19741,200).It was used earlier by Algernon Sidney,who was executed in 1683 for his involvement in the same plot, in his Discourses Concerning Government,ed. Thomas G.West (orig. pub. 1698; Indianapolis: Liberty Classics, 1990), chap. 111, sec. 33, p. 511.

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27. Boyd, Papers of ThomasJeferson, 1:423. 28. Rights of the Colonies, in Bailyn, Pamphlets of the American Revolution, 438. 29. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 226-27. 30. Massachusetts Resolutions, October 29, 1765, Kurland and Lerner, Founders’ Constitution, 1:629. Town of Boston, “Rights of the Colonists,” 1772, in Samuel Adams, Writings, ed. Harry A. Cushing (New York Putnam’s, 1906), 2:351. Jefferson, “A Summary View of the Rights of British America,” 1774, in Boyd, Papers of Thomas Jeferson, 1:134. Continental Congress, Declaration and Resolves, 1774, in Kurland and Lerner, Founders’ Constitution, 1:2. 31. “Farmer Refuted,” 1775, in Papers ofAlexander Hamilton, 137. 32. State of the Union Message, January 11, 1944, in Public Papers andAddresses, ed. Samuel I. Rosenman (New York: Harper, 1938-SO), 13:41. 33. Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (Chicago: University of Chicago Press, 1990), 262,273. 34. Harris v. McRae, 448 U.S. 297 (1980). 35. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971). 36. Henry Shue, “Subsistence Rights: Shall We Secure These Rights?” in How Does the Constitution Secure Rights?, ed. Robert A. Goldwin and William A. Schambra (Washington, D.C.: American Enterprise Institute, 1985), 93. 37. “Property,”March 29,1792, in Kurland and Lerner, Founders’ Constitution, 1598, emphasis in the original. 38. Kurland and Lerner, Founders’ Constitution, 1:7. 39. Rights of the Colonists,in Adams, Writings,2:352. 40. Rights ofthe Colonists,351, emphasis in the original. 41. E.g., Garry Wills, Inventing America (Garden City, N.Y.: Doubleday, 1978), 229-39. Samuel Eliot Morison imagines that Jefferson “improved on Locke” by omitting property: The Oxford History of the American People, vol. 1: Prehistory t o 2789 (New York New American Library, 1972), 295. 42. Summary View, in Boyd, Papers, 1:135, emphasis added. 43. Letter to Milligan, Apr. 6,1816, in Writings ofThomasJeferson, ed. Albert E. Bergh (Washington, D.C.: Thomas Jefferson Memorial Association, 1904), 14:466. 44. Kurland and Lerner, Founders’ Constitution, 1:6. 45. William E. Nelson, The Americanization ofthe Common Law (Cambridge: Harvard University Press, 1975), 121. 46. Morton Honvitz, The Transformation of American Law (Cambridge: Harvard University Press, 1977), 31-32. Honvitz does not agree with the interpretation I have advanced, but his facts support it, as Stephen B. Presser shows in “Revising the American Tradition,” in Law in the American Revolution and the Revolution in the Law: A Collection ofReview Essays on American Legal History, ed. Hendrick Hartog (New York: New York University Press, 1981), 139-40.

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47. Discourses Concerning Government, chap. I, sec. 16; chap. 11, secs. 1, 11, and 19. 48. Paul K. Longmore, The Invention of George Washington (Berkeley: University of California Press, 1988), 46-47, 188. 49. Oration on the Advantages of Independence, Charleston, S.C., July 4, 1778, in Principles andActs ofthe Revolution in America, ed. Hezekiah Niles (New York A. S. Barnes, 1876), 375. 50. Metaphysics, bk. 1. 51. Samuel Williams, “The Natural and Civil History of Vermont,” 1794, in American Political Writings during the Founding Era, 1760-1805, ed. Charles S. Hyneman and Donald S. Lutz, 2:955. 52. John Adams, Discourses on Davila, no. 15, in Works, 6:285. 53. Town of Boston, Rights oftbe Colonists, in Adams, Writings, 2:353. 54. Hamilton, “Farmer Refuted,” 1775, in Papers ofAlexander Hamilton, 1:88. 55. “A Sermon Preached to the . . . Artillery Company in Boston,” 1773, in Hyneman and Lutz, American Political Writings, 1:187. There is a footnote to Locke in one of the two omitted sentences. 56. Wilson, “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” 1774, in Works ofJames Wilson, ed. Robert G. McCloskey (Cambridge: Harvard University Press, 1967), 2:734. 57. Common Sense, 1776, ed. Isaac Kramnick (Harmondsworth: Penguin, 1976), 65-66. 58. Federalist #55,314. 59. Hofstadter, “The Founding Fathers: An Age of Realism,”in TheAmerican Political Tradition (New York Knopf, 1948); repr. in Moral Foundations ofthe American Republic (3rd ed.), ed. Robert H. Honvitz (Charlottesville: University Press of Virginia, 1986), 74. 60. Brutus no. 2, in The Complete Anti-Federalist, ed. Herbert J. Storing (Chicago: University of Chicago Press, 1981), 2:373. 61. Federalist #51,292. 62. Brutus, in Complete Anti-Federalist, 2:373. 63. The President of the Convention to the President of Congress, September 17,1787, in The Documentary History of the Rat$cation of the Constitution,vol. 1: Constitutional Documents and Records, 1776-1 787, ed. Merrill Jensen (Madison: State Historical Society of Wisconsin, 1976), 305. 64. Art. 1,sec. 3 of New Hampshire Constitution, 1784, in Thorpe, The Federal and State Constitutions,4:2454. 65. Instructions from the town of Stoughton to its delegates, 1779, in Massachusetts, Colony t o Commonwealth,ed. Robert J? Taylor (Chapel Hill: University of North Carolina Press, 1961), 120. 66. Quoted in John Phillip Reid, The Concept ofLiberty in the Age ofthe American Revolution (Chicago: University of Chicago Press, 1988), 31. 67. Adams, Writings, 2:354.

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68. Art. 3 of Constitution of North Carolina, 1776, in Thorpe, The Federaland

State Constitutions,5:2787.

69. “Farmer Refuted,” 1775, in Papers ofAlexander Hamilton, 1:104. 70. Preamble of Massachusetts Constitution, in Kurland and Lerner, Founders’ Constitution, 1:11. 71. Ramsay, History of the Revolution, 1:330. 72. Boyd, Papers, 1:427, emphasis added. 73. Appeal to the Inhabitants of Quebec, 1774, in Hyneman and Lutz,American Political Writings, 1:231-39. 74. Federalist #43,248, emphasis added. 75. Instructions of the town of Stoughton, in Taylor, Massachusetts, Colony to Commonwealth,121-22. 76. Martin Diamond, “The Revolution of Sober Expectations,” in As Far as Republican Principles WillAdmit, ed. William A. Schambra (Washington, D.C.: AEI Press, 1991), 215. 77. Morgan, Birth ofthe Republic, 76. 78. Federalist #51,293. 79. Federalist #39,208. 80. See West, Vindicating the Founders, chap. 7 (quoting and discussing Morris’s observations on France in the 1790s). 81. Response to the Address of Welcome from the Mayor of Alexandria, March 11, 1790, in Boyd, Papers, 16:225. 82. Morgan, Birth of the Republic, 75-76. 83. Diamond, “Revolution of Sober Expectations,” 214. 84. Resolutions, October 29,1765, in Kurland and Lerner, Founders’ Constitution, 1:629. 85. (‘Letters from a Farmer,” 1768, Letter 7, end, in The Political Writings o f John Dickinson, 1764-1774, ed. Paul L. Ford (New York: Da Capo, 1970), 356. 86. Resolution of the Virginia House of Burgesses, Nov. 14,1764, in Great Issues in American History: From Settlement to Revolution, 1584-1 776, ed. Clarence L. Ver Steeg and Richard Hofstadter (New York Vintage, 1969), 321. 87. Dickinson, “Letters from a Farmer,” Letter 1,in Ford, Political Writings of John Dickinson, 309. 88. Declaration and Resolves, Oct. 14,1774, in Kurland and Lerner, Founders’ Constitution, 1:2. 89. A Summary View, in Boyd, Papers, 1:121. 90. Wilson, “Legislative Authority of Parliament,” in Works of James Wilson, 2:731. 91. “Novanglus,”no. 7, in Works, 4:106-7, 114. 92. Second Treatise, sec. 132. 93. Second Treatise,sec. 140. 94. Second Treatise, sec. 123. 95. Second Treatise, sec. 192, emphasis added.

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96. Adams, Works,4:215; Art. 4 of the Declaration of Rights, in Kurland and Lerner, Founders’ Constitation, 1:12. 97. Federalist #9,40 (Hamilton); Federalist #51,292 (Madison). 98. George Washington, “Circular to the States,” 1783, in George Washington: A Collection, ed. W. B. Allen (Indianapolis: Liberty Classics, 1989), 241. Federalist #36,192. 99. Part 1,Art. 10, in Thorpe, The Federal and State Constitutions,4:2455. 100. Lincoln, First Inaugural Address, Mar. 4,1861, in Basler, Collected Works of Lincoln, 4:256. 101. Adams, letter to William Tudor, March 8,1817, in Adams, Works,2:312. Discussed in John Phillip Reid, ed., The Briefs Ofthe American Revolution (New York New York University Press, 198l), 45-48. 102. R. R. Palmer, The Age Ofthe Democratic Revolution (Princeton, N.J.: Princeton University Press, 1959), 1:188. 103. Letter to Henry Pierce and others, 6 April 1859, in Basler, Collected Works of Lincoln, 3:376. 104. “Letters from a Farmer,” Letter 3, in Ford, Political Writings OfJohnDickinson, 325-27. 105. A n Address to Barbados, 1766, in Ford, Political Writings OfJobn Dickinson, 261-62. Milton E. Flower argues for Dickinson’s conservatism inJohn Dickinson: Conservative Revolutionary (Charlottesville: University Press of Virginia, 1983). Dickinson’s true place as an adherent of natural rights was restored by Christopher Flannery, “The Orthodox John Dickinson,” in Natural Right and Political Right, ed. Thomas B. Silver and Peter W. Schramm (Durham: North Carolina Academic Press, 1984), 315-27. 106. Letter to Joseph Bringhurst, February 24,1808, in Writingsof ThomasJefferson, ed. H . A. Washington (Washington: Taylor &Maury, 1853), 5:249. 107. Washington, General Orders, July 2, 1776, in Allen, George Washington: A Collection, 71. 108. Letter to John Cartwright, June 5,1824, in Peterson, Writings, 1494. 109. Alexander Hamilton, letter to Lafayette,January 6,1799, in Selected Writings and Speeches, ed. Morton J. Frisch (Washington, D.C.: American Enterprise Institute, 1979), 455. 110. Plato, Republic, trans. Allan Bloom (New York: Basic Books, 1968), book 1. 111. Gordon S. Wood, “The Fundamentalists and the Constitution,” New York Review of Books (Feb. 18,1988): 33-40. 112. Burke, “Speech on Conciliation with the Colonies,” in Kurland and Lerner, Founders’ Constitution, 1:4-5. Ramsay, History of the Revolution, 1:29-30. 113. Strauss, Natural Right and History, 153. 114. William Blackstone, Commentaries (Chicago: University of Chicago Press, 1979), 152. The right of revolution is also acknowledged on 186,205-6, 243-44. Discussed by Herbert J. Storing, “William Blackstone,” in History OfPo-

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litical Philosophy, ed. Leo Strauss and Joseph Cropsey (3rd ed.) (Chicago: University of Chicago Press, 1987), 626-27. 115. A good example is Robert Bork, Slouching towards Gomorrah: Modern Liberalism and American Decline (New York: Regan Books, 1996), which blames today’s liberalism on the principles of liberty and equality in the Declaration of Independence. 116. Plato, Laws, trans. Thomas L. Pangle (New York Basic Books, 1980), beginning. 117. William Rehnquist, “The Notion of a Living Constitution,” in Views from the Bench, eds. Mark W. Cannon and David M. O’Brien (Chatham, N.J.: Chatham House, 1985), 134-35. Harry V. Jaffa, Original Intent and the Framers ofthe Constitution (Washington, D.C.: Regnery Gateway, 1994), 83-106. 118. Wilson, “Lectures on Law,” 1790-91, in McCloskey, Work ofJames Wilson, 2:588, quoting Burke’s ReJections on the Revolution in France. Emphasis added. 119. Abraham Williams, “An Election Sermon,” 1762, in Hyneman and Lutz, American Political Writings, 1:15. 120. Washington, Farewell Address, 1796, in Allen, George Washington:A Collection, 521. 121. The author wishes to thank the Claremont Institute, the Earhart Foundation, the University of Dallas, and the Salvatori Center at Claremont McKenna College for supporting the research on this chapter.

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Thomas Jefferson and the Social Compact Jean M. Yarbrough

B y virtue of his authorship of the Declaration of Independence, Thomas Jefferson is perhaps the best-known exponent of the social compact theory in America. And America is, without doubt, the foremost exemplar of the social compact theory in action. In this chapter, I explore what the social compact theory accomplishes in general terms and look at three different “moments” in the life of the social compact as Jefferson understood it.* These moments correspond to what might be called the origin of civil society, the nature of the compact (with special emphasis on the remedies available when the compact is breached), and finally, its duration. The events and documents most closely associated with these moments are: first, the invocation of social compact theory to overthrow British rule in the name of equality, rights, and consent in the Summary View of the Rights ofBritish Americans and the Declaration of Independence; second, the elucidation of the nature of the compact to lay bare the remedies available when the compact is breached (the Kentucky Resolutions of 1798 and the Virginia Draft Proclamation and Protest of 1825); and third, the invitation to each generation to remake the social compact in Jefferson’s famous “earth belongs to the living” letter to Madison in 1789 and reiterated with equal force in later letters to Samuel Kercheval and Major John Cartwright.

THE SOCIAL COMPACT In general, the theory of the social compact, first elaborated by Thomas Hobbes and later refined by John Locke, accomplishes four goals.2 First, 147

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it sets forth the legitimate basis on which civil society rests, which is the consent of the governed. Why consent? Because for all the social compact theorists human beings are in some fundamental sense equal. No less than Aristotle, Hobbes and Locke recognized that human beings naturally differ in their talents, intelligence, virtue, and strength, but they concluded that however great the disparities, no individualwas so superior to another that he could legitimately rule over another without first obtaining his consent. (Of course, individuals could seek to rule over others without their consent, but such rule could never be legitimate.) This consent takes place in two stages: initially, the agreement to form a people or a society is unanimous, and those who dissent are not considered to be a part of society, much as those who do not wish to join any organization are not included in its membership. Having constituted themselves as a people, the members of the society then establish a government to make and enforce its laws. Since it is impossible to secure unanimous consent-and not wishing to give a minority veto power-this decision is carried out according to the wishes of the majority. Second, and also an inference from this fundamental equality, all human beings by nature possess the same inalienable rights to life, liberty, and the pursuit of happiness, which it is the purpose of government to protect. Indeed, this is the sole and exclusive reason for instituting government: to secure the rights of the people living under it. A just government is one that aims at the advantage of all, and that advantage is understood to be the equal protection of the rights of all. Is this a practical goal? Ever since Edmund Burke, who denounced the French Revolution and its fanatic application of the doctrine of natural rights, critics have objected that the social compact theory is too doctrinaire and unhistorical. In setting up one universal end for all political societies and making consent the test of political legitimacy,it fails to take into account the particular circumstances of differently situated societies, each with its distinctive history, traditions, and culture. But this criticism, while justly applied to the French ideologues and their supporters who argued that the only legitimate governments were republics based on the consent of the governed and dedicated to the most radical interpretation of the rights of man, does not apply to social compact theory as Jefferson understood it. For Jefferson, the end of political society is indeed fured-the only unchanging truth is the rights of man-but the means to that desirable end depend upon the particular circumstances. Although Jefferson supported the French Revolution and regrettably endorsed even its excesses for far

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longer than can be justified, he himself did not believe that the French were prepared to move directly from absolute monarchy to republicanism to secure their natural rights and counseled against it. For the foreseeable future, a limited monarchy, grounded in the consent of the governed, would have satisfied him. Third, the social compact establishes a standard by which to judge when a particular society has exceeded its legitimate ends, either by directly encroaching on the rights of its citizens or by growing so powerful that it poses a serious threat to these rights. Should the people so conclude, they may dissolve that government and constitute another they judge more likely to secure their safety and happiness. But this is a natural right; the Constitution does not provide for its own demise. Jefferson’s willingness to recur to natural right after society has been established is one of the more distinctive aspects of his social compact theory. In contrast to his fellow Virginian, James Madison, who thought it prudent to draw a discrete veil over the natural rights origin of the Founding in order to discourage too frequent a return to these “first principles,” Jefferson stands ready to invoke this natural right to dissolve the compact at the first sign of danget3 Jealousy and resistance are the watchwords of his social compact. Finally, social compact theory establishes the individual as the natural unit of society. In recent years, this has been the aspect of social compact theory most criticized by old-fashioned conservatives, progressives, and communitarians of all stripes. But the social compact theory as Jefferson understands it is not nearly so radically individualistic as contemporary critics assert. In the first place, absent from social compact theory (at least before Rousseau) is the notion of moral autonomy: we do not give ourselves the moral law, but are obliged to live under the “laws of nature and nature’s God.” What is more, these laws do not simply describe how human beings act, they prescribe how they should act. Individuals have no right to do anything that violates these commands. Freedom is not unbounded, but is circumscribed by a higher law. And second, although the purpose of legitimate government is to protect the rights of the individual, individuals are by nature social beings and not “unencumbered ~elves.”~ As such, they have no rights that conflict with their social duties. Whatever Hobbes and Locke may have thought (and on Locke scholars are divided), Jefferson believes that even in the state of nature we have moral obligations to others that we are not at liberty to disregard. By nature, rights and duties tend to be reciprocal; we obtain our own happiness

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to some extent by promoting the happiness of others. This, he believed, is the plan of the Benevolent Creator.

THE OVERTHROW OF THE OLD ORDER AND THE ESTABLISHMENT OF THE NEW The locus classicus of the social compact theory is, of course, the Declaration of Independence, but it was preceded by a most interesting statement in Jefferson’s Summary View of the Rights of British Americans, written two years earlier. In this essay,Jefferson plays fast and loose with colonial history to give maximum scope to the idea that the original American settlers were free to lay claim to these virgin lands for themselves and to govern themselves as they saw fit. What he emphasizes are the natural rights of the settlers to emigrate and to establish new societies and to set up laws and regulations for their safety and happiness. To be sure, Jefferson acknowledges some monarchical agency in all this: the emigrants accepted British laws and freely submitted to the sovereign. But the emphasis is squarely on the natural rights of the British colonists: first, to emigrate and then to acquire land and wealth through their own labor. As Jefferson puts it, America was conquered by individual adventurers, risking their own lives and fortunes, not by William the Conqueror. “For themselves they fought, for themselves they conquered, and for themselves alone they have the right to hold [their pr~perty].”~ To the extent that Jefferson does invoke the historic rights of Englishmen to justify colonial opposition to taxation, he goes back to the pre-Norman Saxon rule when land was owned outright and was not, in the feudal manner, ultimately regarded as the property of the king. But the emphasis in the Summary View is less on historic rights than on natural rights, or rather, the historic rights that Jefferson invokes are those that accord most with what nature intends. If the rights to which Americans lay claim are the gift of nature, and not the king, still less do they depend upon the British Parliament. While generally approving of the Glorious Revolution, Jefferson rejects as having no effect on the colonies that part of the Revolution settlement that shifted sovereignty from the Stuart kings to the king in Parliament. As an American Whig, Jefferson understands the Glorious Revolution to mean that the colonial legislatures are now on par with Parliament. Only the king, acting through the colonial legislatures, can make laws for America. Parliament has no authority to tax the colonies. One hundred sixty thou-

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sand electors in Britain have no right to give the law to four million Americans who are their equals. In fateful language, Jefferson excuses the “extraordinaryinterposition”of the “exasperated”Bostonians who rebelled against the parliamentary “usurpation.” He implores the king to exercise his veto to prevent laws from being passed that are harmful to one part of the extended British empire. Anticipating the argument of the Declaration, Jefferson blames the king for refusing to abolish the African slave trade, an “infamous practice” offensive to the “rights of human nature.” And he warns that when the king trenches on American rights by dissolving the colonial legislatures, “power reverts to the people, who may use it to unlimited extent, either by assembling together in person, sending deputies, or in any other way they think proper.” Strong words, these, but altogether in keeping with the spirit of a free people, “claiming their rights as derived from the laws of nature and not as the gift of their chief magistrate.” In this spirit, Jefferson does not hesitate to instruct the king that he is the servant of the people and responsible to them. “Let those flatter who fear; it is not an American art.”6 Seen in this light, the Declaration of Independence was indeed the last straw in a long line of colonial grievances. Having already in the Summary View rejected the authority of Parliament to make laws for America, Jefferson in the Declaration moves to sever the last remaining connection Americans recognized with Great Britain: the king. This they do not as individuals cast back into a state of nature, nor as thirteen independent and sovereign entities, but as “one people,’’ dissolving “the political bands that have connected them with another.” While throwing off their colonial governments, they nevertheless remain united as a society, free to establish new governments as their safety and happiness require. As we shall see, this, too, is a distinctive aspect of Jefferson’s understanding of the social compact (and related to his willingness to recur to natural right): the dissolution of government does not automatically or immediately lead to anarchy. As Jefferson remarks in the Notes on the State Of Virginia,where he discusses life during the revolutionary era after the old government has been dissolved, virtue, and not fear, remains the operative principle of social life, at least for a time.’ Still, the emphasis of the Declaration is rightly on the individual, as its second paragraph makes clear. The central principle from which all else flows is the self-evident truth that all men are created equal. Although this phrase is familiar to every American, it is so frequently misunderstood that it requires further explanation. By “men”Jefferson does not mean only

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males, and still less, only propertied white males. H e means both men and women of all races, classes, and creeds are endowed with the same inalienable rights.* At the same time, however, inalienable rights are not the same as civil rights, and it is entirely possible that a society may choose to protect the inalienable rights of all while not according to all the same civil rights. Nevertheless, the strong presumption-especially in republican America-that each individual is the best judge of his or her interests leads inevitably to the gradual extension and equalization of civil rights as the best way to guarantee the inalienable rights of all. What are these inalienable rights and what is their ground in human nature? Here, we come to one of the more original aspects of Jefferson’s social compact theory-though I do not mean to imply that it is unique to Jefferson. Jefferson’s famous trilogy of life, liberty, and the pursuit of happiness is indeed an “expression of the American mind,” one that, as befits a people long schooled in self-government and acknowledging a benevolent Creator, has developed the human capacity for spirited action and philanthropy to its highest pitch. In contrast to those who argue that our inalienable rights are grounded in the single selfish desire for comfortable self-preservation, the political psychology of the Declaration is more complicated. The rights Jefferson announces in the Declaration are grounded on three distinct passions: the selfish desire for a secure and comfortable life, a healthy republican pride in the capacity of all human beings for moral and political self-government, and the social (and unselfish) passion of benevolence. For this complex political psychology to work, reason and the moral sense must each do its part so that interest tames pride, and pride ennobles interest, while at the same time benevolence enlarges self-interest and interest restrains the desire to do good to others within reasonable grounds. So conceived, the Declaration does indeed embody, as Lincoln observed, a “principle of right action’’other than self-intere~t.~ Turning from the psychological ground of these rights to the rights themselves, I shall briefly discuss what I take to be the most distinctive aspects of the Jeffersonian and American understanding of rights. I pass over the right to life, or more precisely, the right to preserve life, because Jefferson adds nothing new to this right. In his understanding of liberty, however,Jefferson means more than the rights of individuals to cultivate the full range of their faculties and sensibilities, subject only to the limitations of natural law. In addition to what are essentially these private rights of selfdevelopment and self-enrichment, Jefferson also regards self-government

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as a natural right. Liberty has a public dimension. Free men insist on their rights and stand ready to defend them. Nor, as has sometimes been argued, is this right merely a means to protect purely private and selfish interests. One clear theme in Jefferson’s writings is that men seek to govern themselves not only as a way of advancing their private interests but because it gratifies their healthy republican pride and vindicates their “sacred honor.” Freedom in the sense of governing oneself is natural to human beings, and Jefferson throughout his career was at pains to discover ways in which citizens of a large republic could govern themselves on matters that most directly affect them. Jefferson’s understanding of the pursuit of happiness is also instructive, for Jefferson has a very definite idea of what human happiness consists in, and it is not merely another way of talking about property. To be sure, Jefferson recognizes that property and the right to enjoy the fruits of one’s labor are important elements of happiness, but they are not, as is sometimes argued, the sum total of Jefferson’sview of happiness. In thinking about happiness, Jefferson starts from the fact that individuals possess a variety of talents and desires, which lead them to pursue happiness in different ways. But this does not lead him to conclude, as many modern commentators have done, that happiness is relative or subjective-quite the contrary. For Jefferson, the core of human happiness is permanent and universal: there can be no lasting or genuine happiness without virtue. About this, he is clear: “Without virtue, happiness cannot be.”lo Nor was this view peculiar to Jefferson. Indeed, the equation of happiness with virtue very much expressed the “common sense of the subject,”which was, after all, what Jefferson set out to do in the Declaration. But if Americans were united in their opinion that happiness depended on virtue, this still does not tell us how they understood the term. Speaking on behalf of his countrymen, Jefferson comes to believe that most people find happiness in the exercise of the social virtues and especially in doing good to others. Doing good to others can take a variety of forms: it can mean respecting the rights of others, exercising benevolence, or at least civility, to one’s fellow men, or it can mean pursuing the kind of useful knowledge that improves the lot of humankind. Thus, while Jefferson’s view of human nature stresses the importance of the individual as the repository of certain inalienable rights and grounds these rights in part on the selfish passions, he also softens this view by appealing to the social passion of benevolence and by arguing for the existence of the moral sense that serves as our moral compass in society. The upshot is that for Jefferson,

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there is no tension-or only a minimal tension-between our inalienable rights and our social duties, between the pursuit of our own happiness and the happiness of others. Although the moral implications of this understanding of happiness are profound, the implications for politics are minimal. As the Declaration makes clear, government is obliged to protect only the pursuit of happiness; it cannot-as a general rule-compel us to do good to others, even if this is part of what makes us, as social beings, truly happy. For Jefferson, the tasks of a liberal republic are few: government should restrain individuals from harming one another, compel them to contribute to the necessities of society, and require them to submit their disputes to an impartial judge. It was not then, and it is not now, the purpose of a liberal government to enforce the hll range of our moral obligations. Thus, although the right to the pursuit of happiness entails certain duties to others, which places it on a different footing from those rights that are grounded solely in the selfish passions, it does not fundamentally alter the limited role that Jefferson envisions government playing in our lives. The social compact theory Jefferson sets forth in the Declaration presupposes a vision of human happiness, linked to the exercise of the most exalted moral and social virtues, but it leaves individuals, after they are properly instructed and placed in the most salutary environment, free to pursue happiness as they see fit.

THE DISSOLUTION OF THE SOCIAL COMPACT The passage of the Alien and Sedition Acts in 1798 presented the first great political challenge to the new constitutional order. Responding to what he thought was the unconstitutional assumption of powers to regulate free speech by the federal (and Federalist) government, Vice President Jefferson secretly penned a series of resolutions for the Kentucky legislature, explicating the nature of the federal compact and indicating the proper remedies. Although in 1776, Jefferson had viewed Americans as “one people” (the first stage of the social compact, requiring unanimous consent), he argues here that the Constitution, creating a federal government (the second stage, based on majority rule), is the result of a compact between two parties-the compacting state on the one side and the remaining costates on the other. To drive home the contractual nature of the Union, Jefferson uses the word “compact”no fewer than eleven times in this document.

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Jefferson’s insistence that there are only two parties to the compact establishing the government raises an interesting question: who is to decide when the government has overreached its legitimate powers? It goes without saying that the government in question cannot be the final judge of the extent of the powers delegated to it, and he explicitly rules out elections as a means of resolving such disputes. Nor apparently does the Constitution establishing the federal government provide any guidance. In cases that are not within the compact (cams non foederus), disagreements can only be resolved by recurring to the original parties to the contract. And since, in Jefferson’s rendering, there are only two parties to the contract, the principle of majority rule cannot operate. Instead, each party has “an equal right to judge for itself, as well as of infractions as of the mode and measure of redress.”” As a theoretical matter, Jefferson’s understanding of the nature of the compact is problematic. For one of the purposes of the social compact is to establish a common judge for the impartial resolution of disputes, the very thing that Jefferson here denies. Thus, instead of taking men out of the state of nature by establishing an impartial judge, Jefferson’s conception of the compact leads them, by way of deadlock, back into it. And once back in the state of nature, the only remedy is the natural right to nullify such an infraction by means of which Kentucky might try to return the erring federal government to its proper constitutional foundation. At the same time, however, Jefferson also recognizes that the opposing party retains its natural right to try to bring Kentucky to heel, also by force if necessary.12 The appeal to natural right is a dangerous game. Had Kentucky actually moved to nullify the Alien and Sedition Acts, and not just assert its natural right to do so, it might very well have led to the destruction of the Union. As a practical matter, too, the Kentucky Resolutions fell short of their g0al.13Jefferson had set forth his understanding of the compact in hopes of rousing the sister states to oppose the Alien and Sedition Acts. For if the states agreed that the Alien and Sedition Acts were an unconstitutional assumption of powers not within the compact and moved to nullify them, the laws would have been politically impossible to enforce. In this, his plan backfired. At least in its first go-round, the Kentucky legislature adopted a more temperate version, omitting the right of the state to nullify. But even in this toned-down version, it failed to persuade the sister states. By far the overwhelming majority of state legislatures issued their own statements rejecting the argument of the Kentucky Resolutions and

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urging a constitutional solution of the dispute. (Even before Marbur- v. Madison, this seemed to many like a task for the courts.) In 1800, even Madison, his collaborator and author of the more moderate Virginia Resolutions, thought it prudent to try to clarify what “interposition”meant in the Virginia Resolutions, making sure to show its consistency with constitutionally prescribed forms and to dispel any suggestion that it was allied with Jefferson’s natural right of a single state to nullify a federal law. As was so often the case in the “great collaboration”between the two Virginians, for the rest of his life Madison would face the unenviable task of trying to put out the fires that Jefferson’s more incendiary rhetoric had started, even before it was known that Jefferson was the author of the Kentucky Resolutions or that his own version was even more radical than the official one. In only one respect could the Kentucky Resolutions be judged a political success.Just as Madison had written in Federalist #44, if the federal government sought to overleap its legitimate bounds, the state governments would sound the alarm and warn the people of the danger to their rights. This the Kentucky Resolutions did, and though they were roundly repudiated by the sister state legislatures,the election of 1800 saw the first peacefd transition of power from one political party to another, owing in part to the effect of these resolutions on mobilizing public opinion against the Federalist party and winning public support for the principle that free government is founded in jealousy, not confidence. Resistance to government, even popularly elected government,was the watchword of Jeffersonian republicanism. Seen from this perspective, the natural right of states to nullify unconstitutional laws appears as the lesser of two evils that must inevitably follow if the federal government did not repeal the Alien and Sedition Acts. As Harry V. Jaffa has pointed out, it was not until the “revolution of 1800” that Jefferson was willing to accept free elections as a means of resolving disputes over the extent of federal powers and the nature of the compact. (And indeed, prior to this election, the world had never witnessed a peaceful transition between competing political parties.) But it must be emphasized that this was really true only as long as Republicans won the elections. Thus, when John Quincy Adams was elected president in 1824 and departed from the “strict construction”view of the Virginia Republicans, Jefferson tried to talk Madison into resurrecting the arguments of the Kentucky and Virginia Resolutions. To this end, Jefferson prepared a “Draft Declaration and Protest of the Commonwealth of Virginia” in 1825 to protest the “usurpations” of

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the federal government in authorizing internal improvements. In this latter document, which Madison prevailed upon Jefferson not to make public, Jefferson repeats his argument that the Constitution is a compact created by the states. But in contrast to the Kentucky Resolutions, Jefferson here conceives of the compact as an agreement in which Virginia joined with her sister states who are the coparties to the compact. Retreating from the position staked out in the Kentucky Resolutions, Jefferson now views the compact as multisided; each of the states is a separate party. Hence, it is possible to reach some kind of majority view, and Jefferson states explicitly that Virginia is prepared to abide by the opinion of the majority of the coparties in the hopes that the sounder parts will eventually prevail and return the Union to its rightful principles. Moreover, Jefferson does not object in principle to exercising federal power over internal improvements; he asks only that the states amend the Constitution and delegate this power expressly to the federal government. Nevertheless, on the most important question of nullification, the Declaration and protest reinforce and perhaps even radicalize the argument of the Kentucky Resolutions. Although Virginia will acquiesce in the views of the majority, “in point of right” (here he does not specify what kind of right this is), she unilaterally declares these acts “null and void.” The fact that the compact is here understood as an agreement among the individual states does not in any way alter the natural right of a single state to nullify a federal law it believes unconstitutional. Moreover, Jefferson dangles the threat of secession, something he had not even hinted at in the Kentucky Resolutions, as a further inducement to his sister states to fall in line. To be sure, such a rupture would be a “calamity,” but it would not be the greatest calamity, which is living under a government of unlimited powe r ~Thus, . ~ ~until the end of his life, Jefferson believed that the threat of revolutionary resistance through nullification and threats of secession were appropriate remedies for breaches of the social compact when elections failed to resolve constitutional disputes in a manner acceptable to him. JEFFERSON’S CONCEPTION OF POLITICAL LIFE At first sight it is shocking to see how casually Jefferson treats the bonds that hold political society together. He seems almost to invite the dissolution of society by invoking the natural right of each party to the compact to nullify laws with which it is not in agreement and, failing to get its way,

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secede from the compact. But this is all consistent with his radical understanding of the social compact. For, despite what he says in the Declaration about how prudence dictates that we not overthrow our governments for light and transient causes, Jefferson seems all too eager to discover a peaceful way to bring about the periodic dissolution of the social compact. Indeed, a 111 decade before he penned the Kentucky Resolutions invoking the fateful nullification doctrine (but during the same period that he defended Shays’s Rebellion and asserted that no country should “ever be twenty years without such a rebelli~n”),’~ Jefferson wrote to Madison from Paris asking him to consider the question of whether one generation has a right to bind another to its laws and constitutions. Exploring the implications of the “self-evident” principle that “the earth belongs in usufruct to the living,”Jefferson argues that each generation must be as free as the founding generation to renegotiate the social compact. And here again, Jefferson recurs to nature as his standard: between one generation and another there is no umpire but the law of nature. “Every constitution, . .. and every law, naturally expires at the end of nineteen years. If it is enforced longer, it is an act of force, and not of right.”I6 And Jefferson does not mean this merely as a restatement of the principle that the people always have the natural right to alter or abolish their governments; each generation must actually exercise this choice. In making his proposal, Jefferson seems to be responding to a problem Locke had wrestled with in the Second Treatise of Government. In chapter 8 of that book, Locke took up the objections of his critics that civil society cannot rest on the consent of the governed because men are born into existing political societies and have no real choice in the matter. To this, Locke replied that men do give their consent, but they do so individually when they come of age. Jefferson was not satisfied. In his “earth belongs to the living” letter, he insisted it was not enough that each generation enjoys the “right of repeal,” that is, the power to amend the laws and Constitution. “The power of repeal is not an equivalent”because most governments do not operate on the principle of majority rule and even those that do become corrupt over time. Far better to establish a “law of limited duration,” declaring that every law and constitution “naturallyexpires” at the end of nineteen years. The social compact would in effect automatically expire with each generation and the new one would be given the “solemn opportunity” to make its own arrangements.*’ Madison understandably took a long time to respond to Jefferson’s letter. He had just spent the previous two years fighting to get the Con-

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stitution ratified, and here was Jefferson off in Paris calling for its demise before it was even established. When he finally did reply, he gently pointed out the practical and theoretical difficulties with the proposal. Some of his objections were not new. In Federalist #49,Madison had already criticized the practical difficulties of Jefferson’s earlier proposal to make the Virginia constitution easier to amend. Madison pointed out there that frequent alterations would undermine the reverence for the Constitution on which even the most enlightened and rational government depends. Moreover, having just participated in the Federal Convention, he knew firsthand how “ticklish” it would be to try to repeat the process once the dangers that repressed the passions most unfavorable to liberty had subsided. Finally, he worried that frequent appeals to the people would invite partisan divisions, based on passion and interest, rather than reason and deliberation. Madison repeated these objections in his response to Jefferson’s “earth belongs to the living” letter, and added several more that spoke directly to the proposition at hand. If the earth is indeed the gift of nature to the living, their title can only extend to the natural state. “The improvements made by the dead form a charge against the living who take the benefit of them.’’ Once in civil society, the living are obliged to honor the will of those who came before. The generations are bound to each other in benefits and duties. There is no bright line separating one generation from another. Finally, as a practical matter, he reminded Jefferson that the approaching expiration of the compact would cause great uncertainty, especially with respect to property arrangements, discouraging industry and giving a disproportionate advantage to the enterprising and sagacious, the very people Jefferson most distrusted. Madison then turned to the theoretical question of whether remaking the social compact by majority rule would in fact achieve its intended goal of making each generation as free and independent as the founding generation had been. According to Madison, Jefferson wrongly assumes that when the social compact expires, the decision to form a new one will be according to the principle of majority rule. But, in the state of nature, unanimity is the operative principle, not majority rule. This distinction points to what may be the heart of the difference between the two Virginians. Madison seems to take a more orthodox view of the social compact, where, once law and government expire, society quickly disintegrates, and men find themselves back in the state of nature, left to shift for themselves as individuals. To make each generation as independent as the

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founding generation would require first the unanimous decision to be a people, not the majority decision to establish a new government.l* Jefferson, by contrast, seems to believe that even after laws and constitutions expire, men are not plunged back into the chaotic state of nature. He considers the Hobbesian bellum omnium in omnia the abusive rather than the natural state of man.” In the absence of laws, virtue can be relied upon to hold society together until a new constitution is drawn up and agreed upon by the majority. And however fanciful this might at first appear, recent American history seemed to support him. During the American Revolution, the thirteen newly independent states had successfully framed new governments, and more recently, these states had waited peacefully for two years while the people selected delegates to frame and then ratify the new Constitution. But receiving no encouragement from Madison, Jefferson ceased to press the point with him. He did not, however, drop it. And in later letters to men he obviously regarded as more receptive, he applied the principle to America. Jefferson pointed out that other states had successfully revised their revolutionary constitutions, incorporating the lessons of their own political experience, and he suggested numerous amendments for a proposed constitutional convention in Virginia in the 182Os.2O Thus, Jefferson could find his own view of human nature confirmed by American experience. For in dissolving the social compact Americans did not return to a state of nature, or to put it another way, perhaps the social state is for Jefferson the real state of nature. If this is indeed his view, we can now better appreciate why Jefferson is willing to risk, nay even to invite, the dissolution of the social compact by appealing to natural right.

NOTES 1. I am indebted to Gary Rosen for his observation that the Framers tended to use the term “compact” more than “contract,” because the former is political, while the latter describes commercial relations. Gary Rosen, American Compact: James Madison and the Problem of Founding (Lawrence: University Press of Kansas, 1999), 11. 2. For a fine discussion see Harry V. Jaffa, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Lanham, Md.: Rowman & Littlefield, 2000), esp. chap. 1. 3. For a discussion of this difference, see Rosen, American Compact, chap. 5. 4. Michael J. Sandel, “The Procedural Republic and the Unencumbered Self,” Political Theory 12 (1984): 81-96.

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5. Thomas Jefferson, A Summary View ofthe Rights ofBritish Americans, in ThomasJefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 106. 6. Jefferson, Summary View, 112-21. 7. Thomas Jefferson, Notes on the State of Virginia, Query 13, in Peterson, ThomasJefferson: Writings, 253. 8. For a fuller discussion, see Thomas G. West, Vindicatingthe Founders: Race, Sex, Class, andJustice in the Origins ofAmerica (Lanham, Md.: Rowman & Littlefield, 1997). 9. For a fuller discussion see Jean M. Yarbrough, American Virtues: Thomas Jefferson on the Character o f a Free People (Lawrence: University Press of Kansas, 1998), esp. chap. 1. 10. Jefferson to Amos Cook, January 21,1816, in The Writings ofThomas Jefferson, ed. Albert Ellery Bergh (Washington, D.C.: Thomas Jefferson Memorial Foundation, 1907), XIV: 403-6. 11. ‘‘Kentuch Resolutions,” in Bergh, ThomasJefferson: Writings, 449. 12. See the discussion in Jaffa, New Birth, chap. 1. 13. Jaffa, New Birth, 43. Jaffa stresses here the role of the state legislatures in mobilizing public opinion in the coming election and thus helping to defeat Adams and the unpopular Alien and Sedition Acts by free elections. 14. Thomas Jefferson, “Draft Declaration and Protest of the Commonwealth of Virginia, on the Principles of the Constitution of the United States of America, and on the Violations of them,” in Bergh, ThomasJefferson: Writings,482-86. 15. Jefferson to William S. Smith, November 13,1787, in Bergh, ThomasJefferson: Writings, 911. 16. Jefferson to James Madison, September 6, 1789, in Bergh, ThomasJefferson: Writings, 963. I omit here all discussion of debts, which Jefferson also tries to confine to each generation, even though this is arguably the most important part of his famous thought experiment. 17. Jefferson to James Madison, September 6, 1789, in Bergh, ThomasJefferson: Writings, 959-64. 18. James Madison to Jefferson, February 4, 1790, in The Republic of Letters: The Correspondence betweenJeffersonand Madison 1776-1826, ed. James Morton Smith (New York: W. W. Norton, 1995), I:650-53. 19. Jefferson to Samuel Kercheval, July 12, 1816, in Bergh, ThomasJefferson: Writings, 1401. 20. Jefferson to Samuel Kercheval, July 12, 1816; Jefferson to Major John Cartwright, June 5, 1824; in Bergh, Thomas Jefferson: Writings, 1395-1403, 1490-1496.

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From Subiects to Citizens: The Social Compact Origins of American Citizenship J

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Under the constitution of the United States there are citizens, but no subjects. -James Wilson’ %e Framers of the U.S. Constitution understood citizenship to be grounded in social compact. Because “all men are created equal,” no one has a claim by right of nature to rule another human being. Rule must therefore result from the consent of each individual who is to be ruled. The form that consent takes is social compact. In the Framers’ understanding, the requirement of consent derived from the principles of natural right that were said to inform the new American regime. In theory, citizenship was a simple matter; in practice, however, it became an extraordinarily complex issue. In examining the issue of citizenship, it is necessary to give full recognition to the revolutionary origins of America and to the radical character of that revolution. The core of the American Revolution was the appeal from convention to nature as the ground of political right, and in the course of this appeal a new (and revolutionary) ground for American citizenship was established. As Harry V. Jaffa recently noted, “[tlhe idea of compact is at the heart of American constitutionalism. It is at the heart of the philosophical statesmanship that made the Revolution, of which the Constitution is the fruit. In the most fundamental respect, compact is an inference from the proposition ‘that all men are created equal’.”2The current debate about citizenship is vitiated by the fact that it completely ignores social compact, the central idea that animated both the Framers of the Constitution and the architects of the 163

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Fourteenth Amendment. Current scholarship finds citizenship rooted in the notion of birthright citizenship that was first articulated in 1608 in Calvin: Case, the first case that systematically delineated the basis for British citizenship. As it emerged from the decision in Calvin: Case, birthright citizenship entailed perpetual allegiance to the natural person of the king. It would be difficult to imagine a more antirepublican basis for citizenship,yet this is said by mainstream scholarship to be the foundation of American citizenship. I will argue, however, that the principles of the American Revolution explicitly rejected this view of citizenship and established social compact as the foundation of republican citizenship, a foundation derived directly from the principles of natural right rather than the English common law. I also maintain that the Framers of the Fourteenth Amendment explicitly rejected birthright citizenship in defining American citizenship.

THE FOURTEENTH AMENDMENT AND THE DECLARATION OF INDEPENDENCE Although the Constitution refers to “citizens of the United States,” citizenship is nowhere defined in the Constitution. The issue of citizenship was, of course, crucial to the debate over the Fourteenth Amendment, although surprisinglyenough it did not receive nearly the attention lavished on the other provisions of the amendment-especially privileges and immunities and due process. Indeed, the citizenship clause was almost an afterthought, introduced late in the debate. Despite the fact that the Thirteenth Amendment had abolished slavery, many members of the thirty-ninth Congress believed that a more explicit recognition of the citizenship of the newly freed slaves was required. After all, the Supreme Court’s decision in Dred Scott (1857) had declared that no black of African descent-slave or free-could ever be a citizen of the United States. The mere declaration of freedom in the Thirteenth Amendment was, many members of the thirty-ninth Congress argued, insufficient to settle the issue of citizenship. Prior to 1866, it was widely assumed that state citizenship was primary and federal citizenship derivative; every citizen of a state was automatically a citizen of the United States by virtue of his state citizenship. There had always been considerable uncertainty about this assumption, however, since the federal government has exclusive authority to establish uniform rules of naturalization and some federal cases had

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ruled in favor of the primacy of national citizenship. In any case, it was necessary to reverse this presumption in a decisive manner in order to prevent states from denying state citizenship to the newly freed slaves and thereby preventing them from becoming federal citizens and claiming the whole panoply of civil rights that are the necessary incidents of federal citizenship. As one perceptive observer of the Fourteenth Amendment debates remarked: [Tlhe Republican Party was forced to investigate the meaning of citizenship in the nation and the rights which appertained to that status. . . .They defined United States citizenship as incorporating all the civil rights necessary to secure the natural rights of man. They so defined United States citizenship because it was the only effective way they could apply the principle of the Declaration of Independence which declares that all men are equal before the law in the inalienable rights of life, liberty and p r ~ p e r t y . ~

One of the most powerful statements confirming this analysis was made by Representative Thaddeus Stevens, a prominent member of the Joint Committee on Reconstruction, on May 8,1866:

I beg gentlemen to consider the magnitude of the task which was im-

posed upon the committee. They were expected to suggest a plan for rebuilding a shattered nationnation which though not dissevered was yet shaken and riven. . . . It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now!

Thus, for Stevens, Reconstruction should look forward to a completion of the founding. The founding was incomplete because of the compromises with slavery. Insofar as the Constitution of 1787 tolerated the continued existence of slavery, it remained an incomplete expression of the principles of the Declaration of Independence. The Framers had been compelled to provide protections for slavery in the Constitution because compromise with the slave-holding states was a necessary condition of securing a national government. And, as the most thoughtful of the Federalists understood, without a strong national government the prospects of ever ending slavery were remote. Thus, the prudential compromises in the Constitution

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designed to protect slavery were actually in the service of eventual abolition. But as Jaffa has well noted, “there is nothing in the Constitution itself by which one can discover the ‘prudence’of the Constitution-that is to say, by which one can distinguish the compromises of the Constitution from the principles of the Constitution.”’ The “prudence”of the Constitution comes to light only when it is read in terms of the principles of the Declaration. The compromises with slavery were justified only to the extent that they were necessary and to the extent that they provided the foundation for eventual emancipation. Adoption of the Declaration, of course, made the eventual abolition of slavery a moral imperative. O n February 15, 1866, Representative William A. Newell commented on the relation of the Declaration and the Constitution, noting that “[tlhe framers of the Constitution did what they considered best under the circumstances. They made freedom the rule and slavery the exception in the organization of the Government. They declared in favor of the former in language the most emphatic and sublime in history, while they placed the latter, as they fondly hoped, in a position favorable for ultimate extinction.”6Newell here was echoing the words of Abraham Lincoln, whose omnipresent spirit animated the deliberations of the thirtyninth Congress. Lincoln maintained that the Constitution, understood properly in the light of the principles of the Declaration of Independence, had put slavery “in course of ultimate e~tinction.”~ The task of the thirtyninth Congress was not, as some contemporary commentators allege, to frame a new constitution or to perpetrate a constitutional revolution, but to complete the original Constitution by fulfilling the principles of the Declaration.8Thus the framers of the Thirteenth and Fourteenth Amendments looked upon the Civil War as in some sense the second battle of the Revolutionary War. That is to say, they considered the Revolutionary War and the Civil War as two battles in the same war, both battles fought to vindicate the principle that the “just powers of government” are based on the “consent of the governed.” The Revolutionary War vindicated that principle for most, but the continued existence of slavery and its recognition in the Constitution rendered the founding incomplete. The Civil War was fought to extend the principle of consent to all the governed, and with the adoption of the Thirteenth and Fourteenth Amendments, the Constitution for the first time came into formal harmony with the principles of the Declaration of Independence. The idea that the thirty-ninth Congress was engaged in completing the founding was expressed so frequently during debates that one can hardly doubt that it was the ruling ~ a r a d i g m . ~

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The first definition of citizenship actually occurred in the Civil Rights Act of 1866, which provided that: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”This statutory attempt to reverse the constitutional ruling in Dred Scott caused concern among many legislators. Certainly a constitutional amendment would be less vulnerable to attack than a legislative enactment and would have the additional benefit of making its provisions immune to repeal or change by simple legislative majorities.1° It was this consideration that supplied the immediate impetus for the Fourteenth Amendment. In the Fourteenth Amendment the language of the Civil Rights Act had transmogrified into “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Whatever the status of citizenship before the Fourteenth Amendment, this new language clearly made “national citizenship primary and state citizenship secondary.”” All citizens were first citizens of the United States and citizens of states merely by residence. The primacy of federal citizenship signaled a fundamental change in the federal relationship. Another conspicuous change was that the phrase in the Civil Rights Act excluding “Indians not taxed” was dropped. Senator Jacob Howard of Ohio, a member of the Joint Committee on Reconstruction and the author of the citizenship clause, was forced to defend the new language against the charge that it would make Indians citizens of the United States. Senator Howard assured several tenacious skeptics that “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.”I2Thus, said Howard, “the word ‘jurisdiction,’as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States.”13Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, spoke in support of Howard’s exegesis, contending that “subject to the jurisdiction thereof” simply meant “[nlot owing allegiance to anybody else . . . subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction” of the United States because they owed allegiance-even if only partial allegiance-to their tribes. Thus two requirements were set for U.S. citizenship: a citizen had to be born or naturalized in the United States and subject to its jurisdiction. Birth within the territorial limits of the

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United States, as the case of the Indians seemed to indicate, did not make one automatically “subject to the jurisdiction” of the United States. And “jurisdiction”did not mean simply subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, “jurisdiction”meant exclusive “allegiance”to the United States. Not all who were subject to the laws owed allegiance to the United States. As Senator Howard remarked, the requirement of “jurisdiction,”understood in the sense of “allegiance,” “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.”14 Most remarkable, however, was Senator Howard’s contention that “every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.”15In the context, “national law” refers to “positive law,” the law of the Constitution or statutory law. And almost everyone certainly would have understood the phrase “natural law” to refer to the social compact basis of citizenship, the basis for citizenship adumbrated in the Declaration of Independence and other public documents of the founding era. The frequent references in the debates to “the rights of human nature,” the %acred rights of human nature,” the “natural rights which necessarily pertain to citizenship,”the “inalienable rights of life and liberty,” and other similar phrases indicate that the principles of the Declaration of Independence were assumed to be the principled basis for federal citizenship.16 Two constitutional scholars have boldly. remarkedwithout the slightest consciousness of hyperbole-that “[tlhe fourteenth amendment was intended to bridge the gap between positive law and higher law by empowering the national government to protect the natural rights of its citizens.”l’ And in chronicling the overall strategy of the republicans, these commentators argue that The Republican effort to establish a positive law basis for fundamental rights began with the thirteenth amendment, which eliminated the discrepancy between the natural right of personal freedom and positive laws establishing slavery. In the Civil Rights Act, they turned to the problem of providing statutory protection for the rights of the freed slaves. Finally in the fourteenth amendment, they sought to constitutionalize the higher law.18

This latter phrase is precisely what Senator Howard meant by the confluence of natural law and national law. In short, the republican strategy was

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to complete the founding by bringing the Constitution into formal harmony with the principles of the Declaration of Independence. Almost two years prior to the Declaration, Jefferson had written in the Summary View of the Rights of British America that the king was merely the “chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great machine of government erected for their use, and consequently subject to their superintendence.”19“Our ancestors,” Jefferson claimed, “before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right, which nature has given to all men, of departing from the country in which chance, not choice has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as to them shall seem most likely to promote public happiness.”The right of expatriation is therefore a natural right derived from the “universallaw” of nature, and it was the exercise of this natural right that impelled the “Saxon ancestors’’ to leave “their native wilds and woods in the North of Europe” and to establish on “the island of Britain . . .that system of laws which has so long been the glory and protection of that country.”20Their American descendants in turn exercised this same natural right to expatriate themselves in their quest for “public happiness.” Once arrived in America, it was only natural for these expatriates to adopt a system of laws and government to which they were accustomed. In 1803, St. George Tucker captured the essence of the matter when he wrote that the status of the laws established in the colonies could be decided “upon the ground of compact alone.”“A people,” he continued, about to establish themselves in a new country, remote from the parent state, would . . . stand in need of some municipal laws, and want leisure, and experience to form a code adapted to their situation and circumstances. The municipal laws of the parent state being better known to them, than those of any other nation, a recurrence to them would naturally be had, for the decision of all questions of right and wrong, which should arise among them, until leisure and experience should enable them to make laws better adapted to their own peculiar situation. The laws of the parent state would . . . acquire a tacit authority. . . [and] the colonists themselves could be the only competent judges?’

Acceptance of the laws of England was a matter of choice to be understood on the “ground of compact alone.” That is to say, it was to be understood as a matter of the free and deliberate choice of the colonists. The

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clear implication of Jefferson’s argument is that British rule had always been based on the consent of the governed, and the king was merely the “chief officer of the people” authorized by consent rather than divine right. PATERNAL SOVEREIGNTY, DIVINE RIGHT, AND BIRTHRIGHT SUBJECTSHIP: CALKW’S CASE Jefferson’s argument would have been familiar to any reader of John Locke. For Locke, the rightful origin of civil society is consent-“[tlhe only way whereby any one devests himself of his Natural Liberty.”22And, according to Locke, it is a compact only “which did, or could give beginning to any lawfuZ Government in the World.”23Locke denies that there is such a thing as “natural subjection.” By nature men are “free, equal and independent: and no one can be “subjected to the Political Power of another, without his own Consent.”24Consent is the only legitimate method of exchanging natural liberty for civil society. No one is born owing allegiance. Birthright citizenship, which incurs perpetual allegiance to a prince without consent, is simply a violation of “the Law of right Reason.”25In a passage that must have been all too familiar to Jefferson, Locke argues: “For there are no Examples so frequent in History, both Sacred and Prophane, as those of Men withdrawing themselves, and their Obedience, from the Jurisdiction they were born under. . . and setting up new Governments in other places. . . .All which are so many Testimonies against Paternal Sovereignty.”26 The idea of “Paternal Sovereignty,” of course, had been the main theme of the works of one of Locke’s principal protagonists, Sir Robert Filmer. But the idea of paternal sovereignty also played a prominent role in “the first comprehensive theory of English ~ubjectship”~’ articulated by Sir Edward Coke in his famous opinion in Calvin’sCase (1608).28The issue in Calvin’sCase was the status of those born in Scotland after the accession of James VI of Scotland in 1603 to the throne of England as James I. Robert Calvin was born in Scotland three years after the union of the two kingdoms and as an infant was disseised of a property to which he was heir in England. Since aliens were prohibited by law from owning property in England, the question was whether Calvin was an alien or a natural-born subject within the allegiance of James I. The case was fraught with political difficulties and involved two of the most prominent

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jurists of the age. Francis Bacon, James’s solicitor general, argued for Calvin on behalf of the crown before the Exchequer Chamber; and Edward Coke, as chief judge of the Court of Common Appeals, published an opinion that became the authoritative statement defining allegiance and subjectship in the British empire. Both Bacon and Coke, whatever differences they may have had regarding royal prerogative, argued that allegiance attached to the king’s natural person was ultimately grounded in divine law and natural law-in Bacon’s phrase, “both in nature, and above nature.” Both jurists understood that Calwini Case was one “of exceeding great con~equence.”~~ In 1604, James I proposed that Parliament undertake the complete union of Scotland and England, including the naturalization of all Scottish subjects and the unification of the laws of both kingdoms.30In 1606, the commissioners of Union, whose membership included Bacon, recommended two bills to the Parliament. The first declared that all Scots born after the union of the kingdoms were de jure English subjects and the second proposed the naturalization of all Scots born before 1603. Both bills received a particularly hostile reception in the House of Commons and were rejected. In 1605, in the wake of the abortive Gunpowder Plot, in which a group of Catholic conspirators attempted to assassinate James I, a new oath of allegiance was promulgated demanding acknowledgment that James I was the “lawful and rightful King” and requiring subjects to swear: “I do from my heart abhor, detest, and adjure, as impious and heretical, this damnable doctrine and position, that princes which be excommunicated or deposed by the Pope may be deposed or murdered by their subjects or any other what~oever.”~~ Excommunication was a license for regicide among Catholics and had been used as a powerful weapon by the pope in the battles between church and crown. In 1606, Pope Paul V countered by expressly forbidding Catholics to take the oath. Thus the struggle between the pope and the kings of England, which began at least with King John, continued seemingly unabated with James I. James had ascended to the throne of Scotland as a committed Protestant and remained so after his accession to the throne of England. He was an adherent of divine right and harbored pretensions to “absolute Monarhe."^^ The religious question and the unsettled political relations between England and Scotland forced the issues of “naturall allegiance”and “naturall duetie” to the forefront of England’s political consciousness. It was against this volatile background that Calvin? Case was decided. Although Bacon insisted that this was “no feigned or framed case; but a true case between true

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parties,”33the case was clearly an attempt to diffuse a theological-political crisis as much as it was to settle a legal claim. Although the decision in Calvin’s Case failed to prevent the furious storms that were to wrack the British constitutional system in short order, Coke’s decision in Calvin’sCase had a profound influence on the development of the theory of citizenship that has come to be known as jus soli. Coke and Bacon agreed that it was necessary to ground subjectship in the law of nature, attaching allegiance to the natural person of the king rather than his political person or capacity. Both seemed to understand the peculiar problem of political allegiance in the Christian world, and, while presenting arguments that appeared to support James’s claim to rule by divine right, both jurists portrayed the divine law as collapsing into natural law and ultimately into the common law. Bacon and Coke argued the formal compatibility of natural law and divine law, but this formal compatibility mostly appears in the formula that natural law is confirmed by the divine law. The parliamentary opponents of unification, on the other hand, argued that subjectship was exclusively a matter of positive law. The word “citizen” or “citizenship” naturally never occurs in Coke’s opinion in Calvin’s Case-it is always “subject” or “subjectship.” While there is a kind of reciprocal obligation involved in the relation of subject and king-“power and protection draweth 1igeance”-subjectship is not based on consent; it results from the mere accident of birth. Coke stated: Ligeance is a true and faithful obedience of the subject due to his sovereign. This ligeance and obedience is an incident inseparable to every subject: for as soon as he is born, he oweth by birth-right ligeance obedience to his sovereign . . . for as the subject oweth to his king his true and faithful ligeance and obedience, so the sovereign is to govern and protect his subjects, “regereet protegere subditos suos;” so as between the sovereign and subject there is “dupZexet reciprocum ligame~z.”~~

In short, “ligentia naturalis . . . originally is due by nature and birth.”35 Coke summons Aristotle-“nature’s secretary”-before the bar to provide evidence that ligeance is a conclusion of natural law. Coke cites the Nicomachean Ethics, Book Five, to this effect: “jusnaturale est, p o d apud omnes homines eandem habetpotentiam [natural right is that which has the same power among all human beings].”36The exact source of the quote is uncertain, but it appears to be a paraphrase of the beginning of Book V, chapter vii. Coke surely knew, however, that Aristotle spoke not of a universal natural law binding everywhere and always, but of a natural right

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that everywhere has the same power or force (dynamis). And of natural right, Aristotle says that even though it has everywhere the same dynamis, it is nonetheless changeable. Coke however maintains that Whatsoever is due by the law or constitution of man, may be altered; ergo natural ligeance or obedience to the sovereign is not due by the law or constitution of man. Again, whatsoever is due by the law of nature, cannot be altered; but ligeance and obedience of the subject to the sovereign is due by the law of nature; ergo it cannot be altered.37

Coke concludes from Aristotle “that God and nature is one to all, and therefore the law of God and nature is one to all. By this law of nature is the faith, ligeance, and obedience of the subject due to his sovereign or suEthics, however, provides little support for Coke’s nop e r i ~ r . Aristotle’s ”~~ tion of natural law as a universally binding law, especially as it applies to the citizens rather than subjects. Coke is preparing the ground, of course, for the argument that while allegiance to the king’s natural persona is a conclusion of natural law, binding in both England and Scotland, these two kingdoms are separate and distinct in respect to their municipal law and with regard to the king’s political persona. Coke also summons evidence to buttress his case from Book One of Aristotle’s Politics: “And Aristotle . . . proveth that to command and to obey is of nature, and that magistracy is of nature: for whatsoever is necessary and profitable for the preservation of the society of man is due by the law of nature; but magistracy and government are necessary and profitable for the preservation of the society of man; therefore magistracy and government are of nature.”39Aristotle, of course, argued that man is by nature a political animal and that the polis exists by nature because it is the final cause of all human associations.While the polis is last in the order of temporal causality, it is first in the order of final causality; and it is natural because it is a final cause. And while the polis exists by nature, its establishment requires human art; it does not “grow” spontaneously from nature. Thus, Aristotle remarks, “the one who first constituted [a city] is responsible for the greatest of Each of the subordinate associations, as in every compound, has its rule marked in the economy of nature, where the naturally superior element rules over the inferior. Thus, master rules slave, husband rules wife, and parents rule children. But Book One of the Politics is incomplete in the sense that it does not, as Coke seems to suggest, identify the natural ruler of the polis or the political community. It is true, as Aristotle indicates, that kings ruled villages or tribes as a kind

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of natural extension of the family and that as a consequence earlypoleis were monarchical. But the tribe or village is a subpolitical association that exists only to meet daily recurring needs. The polis, on the other hand, is the self-sufficient community that exists not for the sake of mere life, but for the good life. Only the self-sufficientpolis, as the final cause of all associations, is hlly political. The concept of “natural ligeance” as articulated by Coke is entirely foreign to Aristotle. For Aristotle, citizenship is relative to the regime and is not something that is attached to the “natural”person of the ruler. From Aristotle’s point of view Coke’s analysis stops short of political rule. It is sufficient for Coke, however, to assert that monarchy is the form of rule dictated by natural law and divine law. The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is Zex aeterna, the moral law, called also the law of nature. . . . The apostle in Romans c.ii. saith, “cum enim gentes, quae legem non habent, naturaliter ea quae legis sunt faciunt [When gentiles who have not the law do by nature what the law requires, they are a law unto themselves].” And this is within that command of the moral law, “honora patrem,” which doubtless doth extend to him that is “pater ~atriae.”~~

This derivation of rule from scripture and natural law does not rise to the level of political rule articulated by Aristotle. The monarchical rule that characterizes the family is the rule of a partial, nonpolitical (or subpolitical) association. Monarchy conceived as “pater patriae” is not a political regime. This is why there are no citizens-only subjects-in Coke’s natural and divine law account of monarchy. Political rule properly understood requires citizens who participate in deliberation and decision-making. Monarchy as understood by Coke contemplates only natural subjects who are incapable of the kind of self-rule that characterizescitizens understood in the Aristotelian sense. In BookThree of the Politics, Aristotle poses something of a paradox: while the polis exists by nature, citizens exist only by convention; the polis requires citizens, but there are no citizens by nature. It is law, not nature, that determines citizenship. Among other things, Aristotle remarks that custom defines a citizen as the offspring of parents who are both citizens, sometimes even requiring two or three generations of citizen ancestors. But this definition cannot account for the first citizens-or for the citi-

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zenship of the lawgivers themselves. Those who become citizens of a new regime did not descend from citizen parents; they became citizens by the No citizens are like the ‘‘gegenaz“of the myth of auoperation of tochthony in Plato’s Republic who simply spring from the earth and therefore have an indissoluble attachment to it as “citizens” by nature. Coke’s opinion seeks to articulate a similar ground in nature for subjectship. The attachment is not to the earth or political territory, but to the natural person of the king. In the ancient world, the potential conflict between the obligations owed to the gods and to the laws was minimal because obligations to the gods and the laws were one and the same. After the advent of Christianity, however, the question of obligation or allegiance became problematic. Christianity is a universal religion and creates obligations superior to the laws of any particular community, even though it may be Christian doctrine to obey laws and rulers. Christians are first citizens of the universal City of God and only secondarily of any particular political community. Aristotle, of course, could not have anticipated the existence of a universal religion in which men’s dearest interests were in another world and where men achieved their salvation, not as members of a political community, but as individuals. The political problem was exacerbated by the conflicting claims of the various sects within Christianity. England had been wracked by religious conflict before, during, and long after Coke’s time. What Coke and Bacon tried to do, I believe, was to articulate a ground for political obligation that was independent of the religious question. If allegiance and obligation could attach to the natural person of the king, rather than his political person, questions of allegiance and questions of religion could be separated and the theological-political problem abated, if not solved. It is not impossible that both Coke and Bacon were aware that in Christian ages natural right must speak the language of natural law (i.e., in terms of a law binding everywhere and always). But for natural law understood in this sense to be effective, sovereignty had to reside in the people rather than in kings. Coke obviously could not make this argument, even had he been aware of its necessity. It remained for the American Founding to resolve these tensions on a political level by the separation of church and state. The Framers understood the argument that “all men are created equal” as the most powerful argument against both divine right of kings and the natural right to rule asserted on behalf of kings. Deriving the “just powers” of government from the consent of the governed was the method of translating subjects into citizens and replacing the divine right

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of kings with popular sovereignty. God’s rule of the universe may be monarchical, but from the point of view of the Declaration of Independence it is impious to believe that God’s omnipotence can be translated into merely human hands. Far from being a dictate of divine and natural law, divine right of kings is a doctrine supported neither by nature nor by reason. As Jaffa has recently noted: [Tlhe characteristic understanding of political obligation from the end of the ancient city until the American Revolution was of a movement of authority from a b o v e f r o m God to emperor or king, and from him to his vassals and to their subjects. In its most abbreviated form it was called . . . the divine right of kings. In the Declaration of Independence this order is reversed: All legitimate authority is derived from the exercise of the rights with which every human soul has been equally endowed by its Creator. There is no intrinsic obligation to obey any authority to which he has not given consent.43

Jaffa characterizes this reversal as perhaps the greatest “[o] f all the revolutions in human consciousness.”44Subjectship in Coke’s account depends upon the accident of birth, not reasoned choice. For Jefferson and the founding generation, however, the natural law or natural right basis of citizenship was “choice,” not “chance.” Nature has given all men, Jefferson argued, the “right . . . of departing from the country in which chance, not choice has placed them.”4S According to Coke, the king has “two capacities in him: one a natural body, being descended of the blood royal of the realm;” the other “a politick body or capacity.”The natural body is a creation of God; the politick is merely the “policy of man.”The natural body is mortal and visible, the “politick”is invisible and immortal; the natural body is ensouled, but the politick “hath no soul, for it is framed by the policy of man.’146James I has both a natural persona and a dual political capacity, being the king of both England and Scotland. To which persona is “ligeance” due? If “ligeance” is natural-as it must be if paternal rule is natural-then “ligeance”in Coke’s argument is due the natural person of the king. Thus, the problems of allegiance associated with the king’s dual political persona as king of England and Scotland are rendered nugatory-or at least manageable. Those born within the king’s protection owe “natural ligeance” and since this “natural ligeance” derives from natural law, it is eternaleven though the king’s natural persona is mortal. Since it is the political persona of the king that is eternal, subjectship has a peculiarly apolitical

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character. Indeed, the notion of “subjectship” itself is apolitical in the Aristotelian sense and involves a radical depreciation of the political. This is the reason that there are no citizens in the regime articulated by Coke, only subjects. While the king can create “denizens,”resident aliens with the privileges of natural subjects, it requires an act of Parliament to “naturalize” subjects; natural-born subjects attach to the natural persona of the king, but “naturalized”subjects are created by law and become part of the king’s political persona. And while the king can create denizens he cannot make them “inheritable.”This is reserved to the Parliament as an essential aspect of creating “naturalized”subjects. Neither can the king “make any inheritable . . . that by the common law cannot inherit.”47Coke ruled that Calvin, although born in Scotland, owed “natural-born allegiance’’to King James I as a “post-natz” and was therefore a “natural-born subject”of England and inheritable.Those born in Scotland before the accession of James I-the “ante-natz”-remained aliens incapable of inheriting property under the common law. One commentator correctly remarked that “Calvin’s case is a case study of a constitution in crisis. The Commons’ argument had been explicitly framed in terms of the superiority of the common law over the royal prerogative in matters of naturalization. . . . Coke straddled both sides. He gave the rule of the decision for the king but the substance of his opinion for the Commons.”48 According to Coke, “the ligeance of a natural-born subject [is] not local, and confined only to England.” Rather, ligeance is a quality of “the mind and soul of man, and cannot be circumscribed within the predicament of ~ b i . ’ If, ’ ~for ~ example, an enemy invader should occupy English territory “and have issue there, that issue is no subject to the king of England, though he be born upon his soil, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the king.”50The idea of “natural ligeance” is thus not confined by geography or political boundaries-“ligeance is a quality of the mind, and not confined within any place.”51“Ligeance,”however, does not give the king absolute law-making power in those places where “ligeance”is due. In the case of Scotland, where the king “hath a kingdom by title of descent” and where the laws of that kingdom provide for his descent, “he cannot change those laws of himself, without consent of parliament.”When a king conquers a Christian kingdom, where “he hath ‘vitae et necis potestatem,’ he may at his pleasure alter and change laws of that kingdom, but until he doth make an alteration of those laws, the ancient laws of that kingdom

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remain.” In the case where a Christian king conquers a “kingdom of an infidel, and brings them under his subjection, there ipsofacto the laws of the infidel are abrogated”because those laws necessarily violate the divine and natural law. “Also,” Coke concludes, “if a king hath a Christian kingdom by conquest, as Henry 2, had Ireland” and having given them “the laws of England for the government of that country, no succeeding king could alter the same without parliament. And in that case while the realm of England and that of Ireland were governed by several laws, any that was born in Ireland was no alien to the realm of England.”s2It was this latter point, with its suggestion of a kind of commonwealth arrangement between England and its colonies, that provoked considerable attention in America more than a century and a half later.

SOCIAL COMPACT AND BIRTHRIGHT CITIZENSHIP Birthright citizenship has no more status in the social compact theory of citizenship than “natural subjectship.”The argument, based on natural human equality, is at one and the same time the rejection of Coke’s natural law and divine law justifications for “natural ligeance.” According to Locke, “those who would perswade us, that by being born under any Government, we are natural4 Subjects t o it, and have no more any title or pretence to the freedom of the State of Nature, have no other reason . . . to produce for it, but only because our Fathers or Progenitors passed away their natural Liberty, and thereby bound up themselves and their Posterity to a perpetual subjection to the Government, which they themselves submitted Locke’s argument here contrasts starkly with Blackstone’s who, along with Locke, was one of the most cited authors during the American Founding. Blackstone, in his Commentaries on the Laws OfEngland, still adhered to Coke’s reasoning in Calvin’s Case, and in fact cited Coke as his authority. Natural-born subjects, according to Blackstone, are those “born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.” As in Coke, allegiance has a twofold character: “Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.”Although birthright allegiance “is founded in reason and the nature of government,” the concept is an inheritance from the “feodal system”-it derives from the Umutualtrust or confidence subsisting between the lord and

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vasal.” And “[bly an easy analogy the term of allegiance was soon brought to signify all other engagements, which are due from subjects to their Blackstone’s account of “birth-right ligeance”was identical with that of Coke in Calvin? Case. H e says: Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth [citing Culwini Case].For, immediately upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance of the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other.55

The allegiance due from a natural-born subject is permanent because it is “intrinsic” and “primitive.” One could hardly imagine a doctrine further removed from the theory of the social compact origins of citizenship. One recent commentator has argued that “Coke’s report of Calvin? Case was one of the most important English common-law decisions adopted by courts in the early history of the United States. Rules of citizenship derived from Calvin? Case became the basis of the American common-law rule of birthright citizenship, a rule that was later embodied ” ~ ~ author, in the Fourteenth Amendment of the U.S. C o n s t i t u t i ~ n . The however, admits that the rule adumbrated in Calvin? Case was feudal and “Coke’s doctrine of tying allegiance to the natural body of the King was archaic even by the end of the eighteenth century and should never have had even theoretical significance in the former colonies. When one considers Calvin? Case in the detail it deserves, it is plain that the importance placed upon territory of birth was not logically, politically, or historically ine~itable.”~~ Indeed, we are told that the rule ofjus suli that emerged from Calvin? Case was merely “an historical accident.” Yet, the claim is that the American conception of citizenship grew directly from these feudal origins and entered the United States through the wholehearted embrace of Blackstone and the English common law. This argument, of course, utterly ignores Locke and his influence on the American Founders. There

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can be little doubt that the American Founders rejected “birth-right ligeance” in favor of the social compact origins of citizenship and political obligation. After all, the American Revolution was a massive repudiation of the idea that “[nlatural allegiance is perpetual” and “cannot be divested without the concurrent act of that prince to whom it was first due.” The notion that there is an unmodified rule running from Calvin? Case to the Fourteenth Amendment ignores the most crucial dimensions of the American Founding. The status of the common law in the American Founding is, of course, a matter of enduring controversy. Nevertheless, one would almost certainly have to accept the proposition that anything in the common law that contravened the principles of the Declaration of Independence was repealed by the revolution. Madison remarked that “no support” can be given to “the doctrine that the common law is binding on these states as one society. The doctrine on the contrary, is evidently repugnant to the fundamental principle of the revol~tion.”~~ Both Jefferson and Madison opposed the idea that the common law system had survived the revolution. In 1824Jefferson reflected on the significance of the revolution and its break with British constitutionalism. “Our Revolution,” Jefferson wrote, “commenced on more favorable ground. It presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts.”59The appeal to nature led Jefferson to a different conclusion than the one reached by Coke in Calvin’s Case. Based on an incomplete analysis of Aristotle and biblical texts, Coke, as we have seen, concluded that the law of nature designated natural rulers-the “Puterpatriae”to whom allegiance was due in return for protection. Jefferson, following the inimitable Locke, concluded that by nature “all men are created equal,” and that by nature there were no human beings so superior as to claim rule over others by right of nature. In the Declaration of Independence natural human equality was said to be a “self-evident t r u t h drawn from the “laws of nature and nature’s God.” It is a dictate of natural right, therefore, that all political obligation must be derived from the voluntary consent of each individual. In the absence of natural rulers, no one can rightfully be ruled without his consent. Citizenship is therefore based on consent, not “birth-right allegiance” or “birth-right subjectship”-nor, as we shall see, “birth-right citizenship.” As we will also see, a necessary component of the social compact theory is

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the right of expatriation-“a right, which nature has given to all men, of departing from the country in which chance, not choice has place them.” Needless to say, “expatriation” has no place in the scheme of perpetual “birth-right subjectship” any more than the natural right to revolution, which is the perfect antithesis to “perpetual subjectship.” Madison wrote that “compact, express or implied is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism.”60This was a view that Madison frequently expressed. In a letter to Nicholas I? Trist, Madison repeated his view that “the idea of compact . . . is a fundamental principle of free Government” and explained that [tlhe original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, by which the people in their social state agree to a Government over them. These two compacts may be considered as blended in the Constitution of the U.S.61

And in an attempt “to go to the bottom of the subject,” Madison wrote in 1835, it is necessary to “consult the Theory which contemplates a certain number of individuals as meeting and agreeing to form one political society, in order that the rights and the safety & the interest of each may be under the safeguard of the whole.” The “first supposition,” Madison continues, is that the compact “must result from the free consent of ever- individual.” Society arises, therefore, from the unanimous consent of its members. While its establishment requires unanimity, it must operate on the basis of majority rule where “the w ill of the majority was to be deemed the will of the whole.”The principle of majority rule is either a part of the original compact or it is “a law of nature, resulting from the nature of political society itself, the offspring of the natural wants of man.” In either case, “it is evident” that “the /ex majoris partis” operates as a plenary substitute of the will of the majority of the society for the will of the whole society; and that the sovereignty of the society as vested in & exercisable by the majority, may do anything that could be rightfirl(y done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, wherever vested or however viewed.62

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Majority rule is therefore the practical substitute for unanimity. But majority rule itself can operate only within certain bounds; it can do only what “could be rightjhlly done by the unanimous concurrence of the members.” Thus even unanimous consent has boundaries or limits: it can do only what is “rightful,”that is, what is just or prescribed by “the laws of nature and nature’s God.” Unanimous consent specifies the ends of government. Majority rule determines the means by which the ends are secured. But, as always, the means must be proportioned to the ends. The majority cannot invade the rights of the minority-this would be a case where the means destroyed the ends. Nor can unanimous consent “righthlly” do what is intrinsically unjust. The protection of the “reserved rights of individuals,” those prepolitical natural rights that were understood to be the dictates of human nature, becomes the end for which governments are instituted and can never be treated as means to some other end. Madison gives only one example of a reserved right-the right of conscience. The right of conscience is the most important of the reserved rights simply because it is the necessary precondition of civil society itself.Jaffa states that “[tlhe Founding Fathers knew that government by majority rule was not possible where questions of religious belief might be put to a vote. For majority rule to become compatible with minority rights, sectarian religious differences had to be excluded from the political Once civil society has been established by the voluntary and unanimous consent of its members, new members can be added only with the consent of those who already constitute civil society. Those who were not parties to the original compact remain in the state of nature with respect to the new body politic. Since, as we have seen, the majority can act “as a plenary substitute” for unanimous consent, adding new members to an established community does not require unanimous consent. As Madison notes, “[iln the case of naturalization a new member is added to the social compact, not only without a unanimous consent of the members, but by a majority of the governing body, deriving its powers from a majority of the individual parties to the social Naturalization thus proceeds by reciprocal consent. No individual can be ruled without his consent, nor can any individual join an already established community without its consent. Naturalization is thus the product of contract-an offer on one side and an acceptance on the other. Of course, no community is obliged to accept new members; the determination to add new members is a matter of prudence and will be dictated by the safety and happiness of the body politic.

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One of the reserved rights not mentioned in Madison’s essay “On Sovereignty,”but discussed elsewhere by Madison, is the right of expatriation. “The case of individuals expatriating themselves,” Madison writes, “may well be deemed . . . as a right impliedly reserved.”65Madison regarded the right of expatriation as a part of the “original right” of revolution that can be exercised by the people as a whole when “all the constitutional remedies fail, and the usurpations of the General Government become so intolerable as absolutely to forbid a longer passive obedience & non-resistance.” However, when the people as a whole manifest a “defect of their ability to resist,” the right of revolution, as it were, devolves upon the individual: “the individual citizen may seek relief in expatriation or voluntary exile, a resort not within the reach of large portions of the community.”66As an original right, the right of expatriation is a natural right, the individual’s counterpart to the right of revolution possessed by the people at large. The right of expatriation, of course, cannot be used as a pretext to escape legitimate obligations that have been incurred or to escape from punishment for crimes and the like. It is only a right to escape “intolerable”government, measured not by a subjective standard but the objective standard of natural right. However conceived, it is certain that the right of expatriation-no less than the right of revolution-is antitheical to the concept of birthright citizenship, which carries with it the obligation of perpetual allegiance. The Constitution itself does not define citizenship, although it does specify that the president must be a “natural-born citizen” and members of the House and Senate must have been citizens of the United States for seven years and nine years, respectively. Congress has the exclusive power “[t]~ establish an uniform Rule of Naturalization,” and a necessary inference from this power is that Congress also has exclusive power to regulate immigration as well as define the qualifications for citizenship. As a practical matter, however, until the adoption of the Fourteenth Amendment, state citizenship determined federal citizenship-those who were citizens of states were automatically deemed citizens of the United States. Nevertheless, the privileges and immunities clause of Article IV clearly implied a federal citizenship that was independent of state citizenship: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”Privileges and immunities belong to federal citizens, since the guarantee “in the several States” cannot be an incident of state citizenship. For a variety of reasons-most of them having to do with the issue of slavery-the citizenship issue was not definitively addressed

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until the “framers of the Fourteenth Amendment made national citizenship primary and state citizenship sec~ndary.”~’ In his essay on “Sovereignty,”Madison mentioned a dispute about citizenship that took place in the first Congress. “At the period of our Revolution,”Madison wrote, it was supposed by some that it dissolved the social compact within the Colonies, and produced a state of nature which required a naturdization of those who had not participated in the revolution. The question was brought before Congress at its first session by Dr. Ramsay, who contested the election of William Smith; who, though born in South Carolina, had been absent at the date of Independence. The decision was, that his birth in the Colony made him a member of the society in its new as well as it original state.68

William Smith was a newly elected representative from South Carolina. Doctor Ramsay, who lost the election to Smith, charged that Smith did not meet the constitutional requirements to be a representative because he had not been a citizen of the United States for seven years. Smith‘s ancestors had been among the earliest settlers in South Carolina, and, at the age of twelve, he had been sent abroad to be educated in Britain and Geneva. Both his parents had died before the beginning of the American Revolution and Smith did not return until 1783. Ramsay’s charge was that only those who were present during the revolution were properly citizens of the United States. His petition stated in part that “no man can be born a citizen of a Government which did not exist at the time of his being born; nor can parents leave to their children any other political character than that which they themselves pos~essed.”~~ The question of what constitutes a regime is, of course, an enduring topic in political philosophy, and it was this precise issue that was debated here. Is the regime the same or different after a revolution? Do those who held allegiance to the previous regime automatically become citizens of the new regime? Is allegiance determined in the same way under a monarchy and a republic? O n May 22,1789, James Madison rose on the floor of the House of Representatives to defend Smith. The matter should be settled, Madison stated, “from a consideration of the principles established by the revolution.”’O Smith was, Madison concluded, “on the declaration of independence, a citizen of the United States; and unless it appears that he had forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this House.”The decision, Madison averred, should be guided both by the laws and constitution of South

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Carolina and “by principles of a general nature.” Concerning the general principles, Madison argued that it “is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States.” The charges against Smith, Madison continued, suppose that “when this country separated from Great Britain, the tie of allegiance subsisted between the inhabitants of America and the King of that nation.” This, according to Madison, is a fundamental error. The allegiance of the American people to the British sovereign was dissolved “by the declaration of independence.” But this was only a “secondary allegiance”; the primary allegiance of “each person”was “to the particular community in which he was born,” and this allegiance was retained as a “right of birth” and continued in the “new community.” Thus Smith‘s primary allegiance was as a citizen of South Carolina. “When that society separated from Great Britain,” Madison continued, “he was bound by that act, and his allegiance transferred to that society, or the sovereign which that society should set up; because it was through his membership of the society of South Carolina that he owed allegiance to Great Britain.’’ Thus we see the great distance that the notion of U.S. citizenship has traveled from Calvin? Case. Madison argues that primary allegiance in America was never to the natural person of the king, but to the society that was established by “an original compact.” The charge against Smith would be valid only if the primary allegiance owed particular societies was also dissolved by the Declaration. But, according to Madison, the “original compact” was not dissolved by the separation from Great Britain. Thus, the revolution did not put each individual “into a state of nature,” because “the colonies remained as a political society” and merely “detached” themselves “from their former connexion with another society.” Even if, Madison contends, South Carolina should think proper to revise her constitution, abolish that which now exists and establish another form of Government; surely this would not dissolve the social compact. It would not throw them back into a state of nature. It would not dissolve the union between the individual members of that society. It would leave them in perfect society, changing only the mode of action, which they are always at liberty to arrange.

Madison seems to imply that at the time of the revolution each individual “had the power of making an option between the contending parties.

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Whether this was a matter of right or not however, is a question which need not be agitated in order to settle the case before us.”The question is moot because Smith did not exercise the option, either explicitly or tacitly, to retain his allegiance to Great Britain. H e is therefore bound by the decisions of South Carolina. Since South Carolina regards him as a citizen, his primary allegiance is not in question. As a practical matter, as Madison noted, state citizenship was decisive in determining the transition to federal citizenship. Since the government was to convene immediately upon the ratification of the Constitution, the seven- and nine-year citizenship requirements for the House of Representatives and Senate respectively must have derived from state citizenship-otherwise there would have been no eligible citizens to fill the congressional offices. The Constitution specifies that the president must be “a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution.”This means that the first presidents must have been citizens of a state at the adoption of the Constitution, and state citizenship was therefore deemed sufficient to confer U.S. citizenship. Thereafter, presidents must be “natural born” citizens of the United States. The reliance on state citizenship seems to have been necessary as a transition measure. For a variety of reasons-most of them having to do with the presence of slavery-the Constitution did not specify the conditions of American ~ i t i z e n s h i p . ~ ~ In practice, of course, the new form of citizenship had to draw on some elements of the common law. Citizenship based on social compact would draw on the principles of jus soli as its point of departure, but it would require consent as its active agency, thus rejecting any notion of perpetual allegiance. Allegiance would take on the volitional character of the social contract, as expatriation would become an ordinary and necessary ingredient of citizenship based on social compact. Early court cases on the subject of expatriation were inconclusive, however. The general sense, as summarized by Chancellor Kent, was that, although expatriation was in some sense recognized to be a natural right, its exercise was conditioned by “the permission of government, to be declared by law.” In the absence of “legislative regulation,” Kent concluded, “the rule of the English common law remains ~naltered.”’~ Whether Kent’s conclusion that the common law remains unaltered is subject to some doubt, since the retention of the common law rule would mean the continuation of “perpetual allegiance.” However much the courts may have equivocated on the issue of expatriation, there is no question that the common law concept of

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perpetual allegiance was rejected in toto by the principles of the American Revolution. Perhaps the most representative early case is Inglis cu. The Trustees of Sailor? Snug Harbor (1830). This case, like Calvin? Case, sought to determine the citizenship of Inglis as preliminary to deciding the question of whether he “was or was not capable of taking lands in the State of New York by de~cent.”’~ Although Inglis was born in the United States, the exact date of his birth was unknown. It was an established fact that his parents removed him from the country during the Revolutionary War when they withdrew to England with British troops as they evacuated New York. Justice Smith Thompson, who wrote the opinion of the Court, averred that if Inglis had been born before July 4,1776, and had been removed by his parents, he would have been “an alien, unless his remaining in New York during the war changed his character and made him an If Inglis had been born in New York after July 4, American 1776, then he would be putatively an American citizen, unless he had been born within the area of New York controlled by the British army, in which case he would have been born within the allegiance of the king of Britain. As Thompson noted, “[tlhe rule as to the point of time at which the American antenati ceased to be British subjects differs in this country and in England. . . .The English rule is to take the date of the Treaty of Peace in 1783. Our rule is to take the date of the Declaration of Independence. . . .The settled doctrine of this country is, that a person born here, who left the country before the Declaration of Independence and never returned here became thereby an alien and incapable of taking lands subsequently by descent in this country.”Those who were born in the United States and elected to leave the country after the Declaration but before the Treaty of Peace likewise became aliens. Thompson concluded that the “right of election must necessarily exist in all revolutions like ours, and is . , .well established by adjudged cases. The only difficulty that can arise is to determine the time when the election should have been made.”75 In general, prior cases had determined that the right of election must take place within a reasonable time and, in any case, must have occurred after July 4,1776, and before the date of the first exercise of legislative sovereignty on the part of the new state governments. Anyone remaining after that date was considered to have given tacit consent and thereby to have acquired the obligations of allegiance to the new government. In RespubIica w. Chapman (1781), the Pennsylvania Supreme Court determined this date to be February 11,1777, the date specified by Pennsylvania legislation.

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“[Tlhose who framed,”the acting Chief Justice McClean argued, “thought the separation from Great Britain worked a dissolution of all government, and that the force, not only of the acts of Assembly but of the common law and statute law of England, was actually extinguished by that e~ent.”’~ This case, the chief justice said, presents “an old government being dissolved, and the people assembling, in order to form a new one. When such an instance occurs,” he noted, “the voice of the majority must be conclusive, as to the adoption of the new system; but, all the writers agree, that the minority have individually, an unrestrainable right to remove with their property into another country; that a reasonable time for the purpose ought to be allowed; and, in short, that none are subjects of the adopted government, who have not freely assented to it.”77In a similar case decided by the New York Supreme Court in 1822, the end of the election period was set as April 20, 1777, when “organized government” was established in that state. Before that date “every member of the old society had a right to determine upon adhering to his old allegiance, and withdraw himseq or to abide among us, and thus tacitly, or expressly, yielding his assent to the change, and becoming a member of the new society.”78 In Kilham w. Ward (1806), the Massachusetts Supreme Court specified April 30, 1779, as the date certain for determining alienage because that was the date expressly designated by the legislature. “In consequence of the Declaration of Independence,” it was argued, the old government was dissolved, and the majority had a right to form a new one; but the minority had undoubtedly a right to remove. This seems consonant to the rules of reason, and the principles of natural law. All persons, therefore, who were then within the United States, and were parties to that declaration, must be considered as agreeing to the new political compact, and by virtue of it became citizens of the established government. As to those who were absent, animo rivertendi, to entitle them to the same privilege, it was necessary for them to return within a reasonable time, and by some overt act assent to the compact.79

Other state cases held to the same general principles for determining what constituted a reasonable time for election. In Inglis, the Supreme Court decided that the facts of the case were incontestable: “[Ilt was the fixed determination of Charles Inglis, the father, at the Declaration of Independence, to adhere to his native allegiance. And John Inglis, the son, must be deemed to have followed the

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condition of his father, and the character of a British subject attached to and fastened on him also, which he has never attempted to throw off by any act disaffirming the choice made for him by his father.”80Not being an American citizen, then, Inglis could not inherit. Justice Joseph Story wrote a separate opinion in Inglis that is memorable for its comprehensiveness and lucidity. After rehearsing the common law basis for determining subjects and aliens, Story avers that “[tlhe case of the separation of the United States from Great Britain is, perhaps, not brought within any of the descriptions already referred to.” Before the revolution, all the colonies were part of the British empire and “all the colonists were natural-born subjects, entitled to all the privileges of British-born subjects.”In each of the colonies there were governments established by the authority of the crown and subordinate to it. The Declaration of Independence “proclaimed the colonies free and independent States; treating them not as communities in which all government was dissolved and society was resolved into its first natural elements, but as organized States, having a present form of government, and entitled to remodel that form according to the necessities or policy of the people.”The dissolution of the political connection between the colonies and Great Britain absolved the colonists “from all allegiance to the British crown.” But the governments of the States were not dissolved-this “would have led to a subversion of all civil and political rights and a destruction [of] all laws.” Rather, the States retained their corporate identities; some “proceeded to act and legislate before the adoption of any new constitution, some . . . framed new constitutions, and some . . . have continued to act under their old charters.”81 The perpetual allegiance of the common law had been overthrown.Yet “it could not escape the notice of the eminent men of that day that most distressing questions must arise; who were to be considered as constituting the American States on the one side, and ‘the State of Great Britain’ on the other? The common law furnished no perfect guide, or rather, admitted of different interpretations.”82What was certain, however, was that the republicanism of the Declaration made allegiance strictly dependent on “some overt act or consent.”The general principle, as Justice Thompson had concluded,was “to consider all persons, whether natives or inhabitants upon the occurrence of the Revolution, entitled to make their choice either to remain subjects of the British crown or to become members of the United States. This choice was necessarily to be made within a reasonable time.”83 What was reasonable varied in the individual states, as we have seen. But it

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would be difficult to argue that “a reasonable time” could extend beyond the Treaty of Peace in 1783. On the basis of the decision in Inglis, it is clear beyond any possible doubt that the notion of perpetual allegiance had been rejected because of the American Revolution. Allegiance was now based on consent and was the product of social contract. In republican government allegiance is held in trust, not in perpetuity. The question of expatriation, however, has been a vexing question in American jurisprudence. Both Madison and Jefferson regarded the right of expatriation as intrinsic to social compact as an aspect of the right of revolution. And while there was widespread agreement that the right of expatriation replaced the common law notion of perpetual allegiance, no legislation regulating the subject was passed until 1868. A serious attempt to pass legislation specifying the conditions for expatriation occurred in 1818, but the effort ultimately failed because, even though almost everyone agreed that there was a natural right to expatriation, there were significant doubts as to whether Congress possessed the power to specify its exercise. It was frequently acknowledged that “the right of expatriation was recognized by the declaration of our independence in 1776, and founded on the immutable principles of self government,” and it was a frequently rehearsed argument that the common law doctrine of perpetual allegiance was of feudal origin and unsuitable as a ground of republican c i t i ~ e n s h i pIt. ~was ~ also argued that the constitution, in granting exclusive power to Congress to provide uniform rules of naturalization, necessarily recognized the right of expatriation. Presumably the implicit recognition of this right authorized Congress to specify the conditions of its exercise as well. But the proponents of the bill failed and the legislative recognition of the right of expatriation did not occur for another half-century. In 1868, the Reconstruction Congress passed the Expatriation Act as a companion piece to the Fourteenth Amendment’s specification of citizenship. The act simply provided, in pertinent part, that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” Senator Howard, whom we have already seen as the author of the Fourteenth Amendment’s citizenship clause, stated that the principles of the Declaration of Independence-alluded to in the language of the act-meant that “the right of expatriation . . .is inherent and natural in man as man.”85 The notion of birthright citizenship was frequently described as an “indefensible feudal doctrine of indefeasible allegiance.” One member of the

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House of Representatives gave expression to the general sense of the Congress when he concluded that “[;It is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it.”86 Representative Frederick Woodbridge of Vermont, one of the principal proponents of the legislation, argued that the doctrine of perpetual allegiance “is based upon the feudal systems under which there were no free citizens . . . and the individual man [had] no personal rights; and it was from this source and system that Blackstone derived his idea of indefeasible and perpetual allegiance to the English Crown.” But “the old feudal doctrine stated by Blackstone and adopted as part of the common law of England, that once a citizen by accident of birth [,] expatriation under any circumstances less than the consent of the sovereign is an impossibility. The doctrine .. . is not only at war with the theory of our institutions, but is equally at war with every principle of justice and of sound public law.”87 With the passage of the Expatriation Act of 1868, it seemed that birthright citizenship had finally been banished from the American regime. Representative Woodbridge’s unequivocal repudiation of Blackstone makes it virtually impossible to maintain that, after the passage of the Expatriation Act, the common law was the basis of American citizenship. It is similarly difficult to believe that the Framers of the Fourteenth Amendment intended to adopt the common law rule of citizenship in the light of their many protestations that citizenship derived from consent. If it were true, as we saw Chancellor Kent argue, that the common law was in force until repealed by legislative acts, then the Expatriation Act certainly contemplated such a repeal. Citizenship was now the province of all who were born or naturalized in the United States and subject to its jurisdiction. As Senators Howard and T r u m b d remarked in defense of the Fourteenth Amendment’s citizenship clause, “subject to the jurisdiction” meant owing allegiance exclusively to the United States; and allegiance is established by reciprocal contract-an offer on the part of government promulgated in uniform rules of naturalization and individual choice on the part of those seeking citizenship. Allegiance is not simply a matter of geography; not all who are born within the geographical limits of the United States are born within the allegiance or jurisdiction of the United States. In the Fourteenth Amendment, there are two requirements: birth or naturalization in the United States andwithin the jurisdiction of the United States. If all persons who are born in the United States were ips0 facto born within its jurisdiction,

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then the jurisdiction clause would be rendered superfluous. But a singular requirement of a written constitution is that no interpretation can render any part of the constitution without force or meaning. For example, children born in the United States to illegal alien parents are not born within the jurisdiction of the United States, because their parents, although subject to the jurisdiction of its laws and courts, are not within the jurisdiction of the United States in terms of allegiance. As in the case of IngZis 71. Trustees of Sailor? Snug Harbor, the allegiance of the children properly follows that of the parents. No one can become a citizen without the permission of the United States, nor can any individual be made a citizen without his or her consent. This reciprocity is the necessary and sufficient ground of citizenship based on the consent of the governed.

NOTES 1. Chishoim v. Georgia, 2 US. (2 Dall) 419,456 (1793) (Wilson, J.). 2. Harry V. Jaffa, A New Birth ofFreedom:Abraham Lincoln and the Coming o f the Civil War (Lanham, Md.: Rowman & Littlefield, 2000), 37. 3. Robert J. Kaczorowski, The Nationalization of Civil Rights (New York: Garland Publishing, 1987), 34, 103; see William E. Nelson, The Fourteenth Amendment: From PoliticaZ Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988), 71-80; Harold M. Hyman and William Wiecek, Egual Justice Under Law: ConstitutionalDevelopment 1835-1875 (New York: Harper & Row, 1982), 400-404; Pamela Brandwein, Reconstructing Reconstruction: The Supreme Court and the Production ofHistorical Truth (Durham, N.C.: Duke University Press, 1999), 6, 56. 4. Congressional Globe, 39th Cong., 1st Sess., 2459 (1866). 5. Harry V. Jaffa, Original Intent and the Framers of the Constitution:A Disputed Question (Washington, D.C.: Regnery Gateway, 1994), 21; see 34, 62, 71, 293-94,301. 6. CongressionaZ Globe, 39th Cong., 1st Sess., 866. 7. Lincoln, “Speech at Chicago,”July 10,1858, in The Collected Works ofAbraham Lincoln, ed. Roy P. Basler (New Brunswick, N.J.: Rutgers University Press, 1953), 2:492; see also “House Divided Speech,”June 16,1858, in Collected Works, 2:461. 8. The late Justice Thurgood Marshall said that he did not consider “the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government and its respect for the individ-

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ual freedoms and human rights, we hold as fundamental today. . . . While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment.” “Speech to the San Francisco Patent and Trademark Trade Association,”Maui, Hawaii, May 6,1987. Printed in HarvardLaw Review 101 (1987): 1,2. 9. In addition to the speeches cited in the text, see inter alia, Congressional Globe, 39th Cong., 1st Sess., 571 (Rep. Morrill); 573 (Sen. Trumbull); 574 (Rep. Johnson); 673-74; 680; 682; 684-85 (Sen. Sumner); 726-28 (Rep. Walker); 739 (Sen. Lane); 1012 (Rep. Plants); 1077-78 (Sen. Nye); 1089 (Rep. Bingham); 1262 (Rep. Broomall); 2510 (Rep. Miller); 2802 (Sen. Stewart); 2961 (Sen. Poland); 3032 (Sen. Johnson); 3037 (Sen. Yates). 10. Congressional Globe, 39th Cong., 1st Sess., 2459 (Rep. Stevens): “a law is repealable by a majority. And I need hardly say that the first time that the South with their copperhead allies obtain the command of Congress it will be repealed”; 2462 (Rep. Garfield); 2498 (Rep. Broomall); 2896 (Sen. Doolittle). 11. Kaczorowski, The Nationalization of Civil Rights, 199. 12. Congressional Globe, 39th Cong., 1st Sess., 2890 (Sen. Howard). 13. Congressional Globe, 39th Cong., 1st Sess., 2895. 14. Congressional Globe, 39th Cong., 1st Sess., 2890. A leading textbook, Thomas A. Aleinikoff, David Martin, and Horoshi Motomura, Immigration and Citizenship: Process and Policy (4th ed.) (St. Paul, Minn.: West Group, 1998), 14, quotes the language of the Fourteenth Amendment with a parenthetical explanatory remark “AUpersons born or naturalized in the United States and subject to the jurisdiction thereof [which may exclude the children of foreign ambassadors, and means little, if anything, more than that], are citizens of the United States and of the state wherein they reside.” But the debate in the thirty-ninth Congress clearly demonstrated that “allegiance”was a requirement in addition to birth or naturalization. Indians were excluded as were the children born in the United States of those who were merely sojourners. Interpreting the “jurisdiction”clause as automatically including all persons who are born within the territorial limits of the United States simply renders the jurisdiction clause superfluous. Illegal aliens, for example, are not within the jurisdiction of the United States and neither are their children who are born in the United States. Even under the pure theory of birthright citizenship, allegiance (not territory) was decisive (see below the discussion of Calvin? Case).The exclusion of Indians from citizenship by the operation of the “jurisdiction”clause indicates that territory is not the principal factor in determining citizenship. In 1870, a Senate resolution instructed the Judiciary Committee to investigate whether the Fourteenth Amendment conferred citizenship upon Indians. The committee report, published on December 14, 1870, concludes “that the Indians, in tribal condition, have never been subject to the jurisdiction of the United States in the sense in which the term jurisdiction is employed in the fourteenth amendment to the Constitution.” Indeed, “the Indian tribes were . . . excluded by the restricting phrase, ‘and subject to the jurisdiction,’

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and that such has been the universal understanding of all our public men since that amendment became a part of the Constitution” (Senate Report No. 268,41st Congress, 3rd Sess. [1870], 9-10). It would, of course, be chimerical to believe that the Framers of the Fourteenth Amendment intended to confer citizenship on the children of illegal aliens born in the United States, but not on Native Americans born in the United States. See Edward J. Erler, “Immigration and Citizenship: Illegal Immigrants, Social Justice and the Welfare State,” in Loyalty Misplaced Misdirected Virtue and Social Disintegration, ed. Gerald Frost (London: Social Affairs Unit, 1997), 77-81. 15. Congressional Globe, 39th Cong., 1st Sess., 2890. See also 2765 (Sen. Howard). 16. See Congressional Globe, 39th Cong., 1st Sess., 477 (Rep. Saulsbury); 600 (Sen. Trumbull); 680,687 (Rep. Sumner); 1088 (Rep. Woodbridge); 1090 (Rep. Bingham). 17. Daniel A. Farber and John E. Meunch, “The Ideological Origins of the Fourteenth Amendment,” Constitutional Commentary 1 (1984): 236. 18. Farber and Meunch, “Ideological Origins,” 255. 19. Thomas Jefferson, “A Summary View of the Rights of British Americans,” in Thomas Jeflerson: Writings, ed. Merrii D. Peterson (New York Library of America, 1984), 105. 20. Jefferson, “Summary View,” 105. 21. St. George Tucker, “Of the Unwritten or Common Law of England; and Its Introduction Into, and Authority within the United States,” Note E, in Blackstone? Commentaries: With Notes of Reference, to The Constitution and Laws, of the Federal Government ofthe United States; and of the Commonwealthof Virginia. With A n Appendix to Each Wume . . ., ed. St. George Tucker (Philadelphia: William Young Birch, and Abraham Small, 1803; reprint, New York Augustus M. Kelley Publishers, 1969), 2:384. 22. John Locke, Second Treatise, in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), para. 95. 23. Locke, Second Treatise, 99. 24. Locke, Second Treatise, 95. 25. Locke, Second Treatise, 118. 26. Locke, Second Treatise, 115. 27. James H. Kettner, The Development of American Citizensbip, 1608-1870 (Chapel Hill: University of North Carolina Press, 1978), 17. 28. 2 Howell? State Trials 559 (1608). Coke’s opinion is reported at 607. 29. 2 Howell? State Trials 575. The delicate political character of the case was indicated by Bacon in his peroration: “Some things I may have forgot, and some things perhaps I may forget willingly; for I will not press any opinion or declaration of late time which may prejudice the liberty of this debate; but ‘ex dictis, et ex non dictis,’ upon the whole matter I pray judgment for the plaintiff.”

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30. Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1991), 138, praises James I (“our most wise king”) who “endeavour[ed] the Union of his two Realms of England and Scotland. Which if he could have obtained, had in all likelihood prevented the Civill warres, which make both those kingdomes, at this present, miserable.” 31. Quoted in Polly J. Price, “Natural Law and Birthright Citizenship in Calvin’s Case (1608),”YaleJournal o f l a w and the Humanities 9 (Winter 1997): 126. 32. James I, “The Trew Law of Free Monarchies: or the Reciprock and Mutuall Duetie Betwixt a Free King, and His Naturall Subjects,” in Political Writings ofKing James n a n d I, ed. Johann P. Sommerville (Cambridge: Cambridge University Press, 1994), 64; Zera S. Fink, The Classical Republicans: A n Essay in the Recovery o f a Pattern o f Thought in Seventeenth Century England (Evanston, Ill.: Northwestern University Press, 1945), 46. 33. 2 Howell? State Trials 576. 34. 2 Howell? State Trials 614. 35. 2 Howell? State Trials 615. 36. 2 Howell? State Trials 629. Translation supplied by Thomas G. West. 37. 2 Howell? State Trials 652. 38. 2 Howell? State Trials 629. 39. 2 Howell? State Trials 629-30. 40. Aristotle, The Politics, trans. Carnes Lord (Chicago: University of Chicago Press, 1984), 1253a-30. 41. 2 Howell? State Trials 629. See Edward Erler, “The First Amendment and the Theology of Republican Government,” Interpretation: A Journal of Political Philosophy 27, no. 3 (Spring 2000): 234-35. 42. Arktotle, The Politics, Book 111, chap. 2. 43. Jaffa, A New Birth $Freedom, 301; see also 44, 124, 146, 153. 44. Jaffa, A New Birth of Freedom, 135. 45. Jefferson, Summary View, 105. 46. 2 Howell? State Trials 626. 47. 2 Howell? State Trials 619. 48. Harvey Wheeler, “Calvin’s Case (1608) and the McIlwain-Schuyler Debate,” American Historical Review 61, no. 3 (April 1956): 591. 49. 2 Howell? State Trials 621,619. 50. 2 Howell? State Trials 617. 51. 2 Howell? State Trials 623. 52. 2 Howell? State Trials 638-39. 53. Locke, Second Treatise, 116. 54. William Blackstone, Commentaries on the Laws o f England (Oxford: Clarendon Press), 1765-69; reprint (Chicago: University of Chicago Press, 1979), 1:354-55. 55. Blackstone, Commentaries,357-58.

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56. Price, “Natural Law and Birthright Citizenship,” 74. 57. Price, “Natural Law and Birthright Citizenship,” 138. 58. Madison, “The Report of 1800,”in The Papers $James Madison, ed. David B. Mattern, et al. (Charlottesde, Va.: University Press of Virginia, 1991), 17:328. 59. Jefferson to John Cartwright, June 5, 1824, in ThomasJeferson: Writings, 1491. 60. Madison to Daniel Webster, March 15, 1833, in The Writings of James Madison, ed. Gaillard Hunt (New York G. P. Putnam’s Sons, 1900-1910), 6:605. 61. Madison to N. P.Trist, February 15, 1830, in Writings $James Madison, 9:355. 62. Madison, “Sovereignty,”in Writings of James Madison, 9570-71. 63. Jaffa, A New Birth $Freedom, 437; see also 17, 118. Locke, A Letter Concerning Toleration, ed. James H. Tully (Indianapolis: Hackett Publishing, 1983), 26. Jefferson, Notes on the State $Virginia, in ThomasJe-erson: Writings,285: “our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.” 64. Madison, “Sovereignty,”9571. 65. Madison to N. F? Trist, 9:356. 66. Madison to N. P.Trist, 9:353. 67. Kaczorowski, The Nationalization of Civil Rights, 199. 68. Madison, “Sovereignty,”9570 69. 1Annals ofCongress 419, ed. Gales and Seaton (May 22,1789). 70. 1Annals of Congress 420. Madison’s speech appears at 420-23. 71. See John P. Roche, The Early Development of United States Citizenship (Ithaca, N.Y.: Cornell University Press, 1949), 2,26. The problem was illustrated by Jefferson even before the adoption of the Constitution when he wrote in the Notes on the State o f Virginia that slaves are “one half the citizens” of America (288).The question ofwho were citizens of the United States necessarily involved the question of slavery. 72. James Kent, Commentaries on American Law (New York: Da Capo Press, 1971), 2:42. 73. Inglis v. Trustees $Sailor; Snug Harbor, 28 U.S. (3 Peters) 99, 120 (1830). 74. Inglis v. Trustees $Sailor; Snug Harbor, 28 U.S. (3 Peters) 99, 120. 75. Inglis v. Trustees $Sailor; Snug Harbor, 28 U.S. (3 Peters) 122. 76. Respublica v. Chapman, 1 Dall. 52,58 (1780). 77. Respublica v. Chapman, 1D d . 58. 78. Jackson v. White, 20 Johns. 313,323 (1822). 79. Kilham v. Ward,2 Mass. 236 (1806). 80. Inglis v. Trustees of Sailor? Snug Harbor, 28 US.(3 Peters) 124. 81. Inglis v. Trustees of Sailor; Snug Harbor, 28 U.S. (3 Peters) 157-58. 82. Inglis v. Trustees ofsailor; Snug Harbor, 28 U.S. (3 Peters) 159.

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83. Inglis v. Trustees oj’SailorIr Snug Harbor, 28 U.S. (3 Peters) 160. 84. Annals of Congress, 15th Cong., 1st Sess., 1042. 85. Congressional Globe, 40th Cong., 2nd Sess., Appendix, 561. 86. Congressional Globe, 40th Cong., 2nd Sess., Appendix, 868 (Rep. Woodward). Representative Bailey of New York described birthright citizenship as “the slavish feudal doctrine of perpetual allegiance,”967. Similar arguments were pervasive throughout the debate. 87. Congressional Globe, 40th Cong., 2nd Sess., Appendix, 1130-31.

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Alexander Hamilton and the Grand Strategy of the American Social Compact Karl Walling

A e x a n d e r Hamilton had one great mission: to frame, enact, and interpret a social compact or constitution for the United States that would enable it to address the dangers of foreign and civil war effectivelywhile preserving the liberties for which he had fought as a soldier of the American Revolution. H e had many other priorities too, ranging from founding the New York Society to Emancipate the Slaves to encouraging his people to take part in the financial and industrial revolution then taking place in England to leading the Federalist party and founding the New York Post to running an important law practice in order to make ends meet for a growing family. Nonetheless, if there is a goal that gives clarity and shape to almost everything he attempted, it was reconciling the new American principles of liberty with the older practices of statecraft, especially as that craft pertained to war. He had limited success with the first part of his mission, framing the Constitution of 1787.To be sure, he had been among the first to call for a new constitution, even before the Articles of Confederation had been accepted by all of the states. This was in 1780, when it was evident to him and most officers on Washington’s staff during the War for Independence that the Articles were unfit for war and therefore unlikely to secure American liberty without massive amounts of unreliable foreign aid. He also appears to have been significant at the Annapolis Convention of 1786, where he helped draft a call for a new convention to establish a government adequate for the exigencies of the Union. Since any merely confederal form of government was unlikely to achieve that end, one might say that Hamilton helped author the language that encouraged James Madison and others to 199

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scrap the Articles and begin anew with a proposal for a mixed nationalfederal government at the Philadelphia Convention. Few would attribute significant influence to Hamilton at the Convention. True, he did give a long and some say brilliant speech on June 18,1787. Though applauded by most present to hear it, it does not appear to have been supported by any. After that speech, the supporters of the New Jersey Plan, which Hamilton believed was not much of an improvement over the Articles of Confederation, appear to have lost their momentum. Hence, one might infer that Hamilton’s efforts on June 18 were a marvelous piece of indirection designed to save a government at least as energetic as the one drafted by Madison from Virginia, but indirection was never Hamilton’s virtue.l Ifwe take Hamilton at his word, he did not care much for Madison’s Virginia Plan either, in large part because it was too democratic. It did not pay sufficient attention in his mind to the need for wisdom, based on experience, and responsibility, based on tenure, in those charged with framing, executing, and interpreting the laws of a republic that was also a vast and growing empire. As a result, he thought even the Virginia Plan would fail. Indeed, he was highly skeptical about the final product of the convention. It seemed to lack sufficient energy and stability to endure for long, though with skillful administration (and with himself cast as the most skillful of administrators in Washington’s first term), Hamilton believed the Constitution might still accomplish substantial good. So when forced to choose between the Articles and the Constitution, he reluctantly added his name to the signers of the new American social compact? Hamilton had more success with the second part of his mission, getting the Constitution enacted by the state ratifying conventions, but here too we should be careful not to exaggerate his influence. True, he went fifteen rounds against Melancton Smith and other antifederalistsat the New York Ratifjmg Convention. True again, Smith did have a change of heart and brought over enough of the opposition for the federalists to make New York the eleventh state to ratify the Constitution. Yet many say that interests, deeds, and even threats were more important than speeches in the constitutional politics of New York, if not even in each of the state ratifying conventions. With Hamilton’s encouragement, New York City threatened to secede from New York State unless it ratified the Constitution, which it promptly did.3True again, Hamilton first proposed the collection of essays that we now know as The Federalist.H e also selected his coauthors,John Jay and James Madison, and wrote the majority of the essays, including all of the essays on the executive and the judiciary. Justly,

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these essays have acquired enormous prestige among constitutional scholars and students of American political thought for their clarity, penetration, coherence, and near comprehensiveness; yet there is little evidence that many people read them in 1787, much less that they had significant influence on how people voted in New York or any other state. Finally, neither Madison, who is commonly termed the father of the Constitution, nor Hamilton was satisfied with the work of the Convention, albeit for different reasons. The Constitution they helped to ratify was too weak, too federal, and too democratic for Hamilton’s tastes and, in the absence of a national veto over acts of the states, too vulnerable to the whims of faction for mad is on'^.^ So if Hamilton deserves mention when Americans reflect upon their social compact, it must be primarily because of how he began to interpret the Constitution, first in his defense of the Constitution during the struggle to ratify it, and later, as secretary of the Treasury in the Washington administration. During Washington’s presidency, his quarrels with Thomas Jefferson, Washington’s secretary of State, and Madison, now the rising leader of republican opposition to Hamilton’s financial program in the House of Representatives, helped give birth to the American political party system, based on Hamilton’s broad and Jefferson’s and Madison’s strict construction of the Constitution. What then were the nature and purpose of Hamilton’s reading of the Constitution? What advantages did he hope to acquire through his mode of constitutional interpretation? What price was he willing to pay? In other words, what kind of statesmanship informed Hamilton’s understanding of America’s social compact, and how did he use that compact to support the kind of statesmanship he believed necessary for the infant republic? These questions force us to address Hamilton’s sense of mission again. At the Federal Convention, each delegate was addressed as “Mister,” but Hamilton was usually referred to as “Colonel Hamilton.’’ He not only was a soldier of some distinction, but he thought like one too. He kept his objectives clear in his mind so that he could be clear about the means necessary to obtain them and their relative priority. In other words, he thought strategically from the beginning to the end of his brilliant but short career. For him, the Constitution of 1787 was not merely a statement of grand principles and procedures for upholding the rule of law and government rooted in popular consent. It was also a strategic document. Imperfect and incomplete as it was, it might be the cornerstone of his grand strategy to render his country both fit for war and safe for liberty.

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It matters significantly that Hamilton had two ends, not one, and that they were not equal in value. It is a clichC to say that Hamilton stood

for strong government. This begs the big question, strong for what purpose? For Hamilton, strength was essential for accomplishingthe ultimate end of securing liberty. In the minds of many of his countrymen, however, strength was incompatible with liberty, so whatever Hamilton had to say about the necessity of strength to secure liberty often failed to get through to them.5They frequently mistook his defense of energetic government as the harbinger of some form of despotism. This was partly Hamilton’s fault, since he had a habit of speaking all too bluntly about the realities of politics, that is, in a manner bound to offend republican sensibilities in his time, but this bluntness, born of clarity, was also his virtue. If we examine why Hamilton believed strength was essential to secure liberty, we can begin to understand how his statesmanship was often decisive in making the Constitution a durable instrument of American freedom. In Hamilton’s case, the most important task of the Constitution was to secure liberty. For this end, a variety of means were requisite in the following order of priority: independence, not merely from England, but from all foreign powers; Union, both as a means to independence and a way to avoid civil war; institutions of government capable of making the nation’s potential energy kinetic, especially in time of foreign and civil war; and finally, procedures to ensure that those entrusted with using the nation’s power neither abused their powers nor lost their sense of accountability to the electorate. This sense of priorities is reflected in the very structure of The FederaZist, which, after all, Hamilton organized on his own before finding contributors for his project. The first section (essays 1-14) on the utility of a well-constructed Union is devoted primarily to the dangers of foreign and civil wars to American independence and liberty. The second and third sections (essays 15-36) cover the insufficiency of the Articles to preserve the Union and the necessity of a government at least as energetic as the one proposed in the Constitution to do so. The fourth section (essays 37-85) addresses the conformity of the Constitution to the true principles of republican government (as well as many other subjects), but with enormous emphasis on showing why the powers necessary to the new government were not likely to be abused frequently6 Already, one can see why many of Hamilton’s contemporaries were suspicious of him. The means he ranked least important, such as a bill of rights or state and local government, were frequently what they ranked most important. This does not necessarily mean that what others valued most was

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unimportant to Hamilton, but if compromises and tradeoffs had to be made, he was clear in his mind what counted most and why. Before Americans could talk about security from abuse of power by the national government, they had to have a national government. Moreover, Americans already had strong institutions of local government and an instinctive mistrust of any power not directly subject to their control, even if that power was absolutely necessary for their liberty. Since it was unlikely that either those local institutions or this suspicious instinct would wither away in the near or probable future, Hamilton believed the greatest dangers to American liberty would arise from the weakness rather than the strength of the national government. Strategy, whether military or political, is not geometry or algebra. It admits of no certain answers. Hamilton took a calculated risk that American liberty would survive and prosper more if Americans strengthened their national government than if they allowed it to disintegrate. At great risk to his reputation and political career, he swam against the current of popular prejudice in an effort to convince Americans to want the kind of government he believed would be necessary to secure their liberty, especially in time of war. Hence, it is a mistake to cast the debate over the Constitution of 1787 and how to interpret it as one between partisans of liberty on the one hand and partisans of order on the other. That prejudices our view of the parties from the beginning and thereby obstructs a judicious estimation of the merits of their arguments. In truth, both sides, whether called antifederalists and federalists or federalists and republicans, were partisans of liberty first and foremost. They disagreed, however, on the kind of political order best suited to secure liberty ( F 1:4-6). NATIONAL INDEPENDENCE Why would Hamilton treat independence as the most important means to secure American freedom?To begin with, he was not alone in thinking that way. Indeed, at the beginning of the American Revolution, virtually everyone who called himself a patriot agreed with him. Prior to 1776, Americans protested to king and Parliament, demanding that their liberties be secured, especially their most precious liberty to consent to the laws by which they would be governed. If possible, they meant to have those liberties while remaining members of the British empire, but if that were not possible, they would fight for independence so that they could secure

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their liberties on their own. This move led them, first, toward becoming republicans rather than monarchists, and second, toward establishing their own empire in North America. The Treaty of Paris granted Americans their formal independence in 1783, but real independence required much more than diplomatic recognition from England. Consider the strategic situation of the United States in 1787, just four years after the end of the War for Independence. Contrary to the Treaty of Paris settling the war between England and the United States, England continued to occupy its forts in the Northwest Territories, in large part because Americans had failed to comply with provisions of that treaty requiring them to pay their prewar debts to British creditors, to restore property confiscated from loyalists during the revolution, and to otherwise treat former loyalists as full citizens of the United States. Spain controlled the Gulf of Mexico, including the Floridas and the port of New Orleans, so it was able to block American foreign trade west of the Appalachians at will. Wartime inflation had made the continental currency almost worthless; Congress had no independent means to raise revenue, and the United States was in enormous debt not merely to creditors at home, but also to France and the Netherlands, which had financed most of America’s war against England. Americans had no navy. The army consisted of fewer than seven hundred men stationed at West Point and scattered forts across the West. In other words, if a struggle erupted with England, Spain, or some other foreign power, the government had neither the troops nor the money to vindicate its independence by force of arms.’ American failure to comply with the Treaty of Paris gave England legitimate cause to renew the recent war at a time and place of its own choosing. Competition with England over fishing rights and with both England and France over the right to trade with their empires was a likely source of quarrel with either or both of them. Sometimes, impatient for Congress to help them, Americans were more than willing to settle quarrels with foreign powers on their own. Georgia had waged war against Indian tribes in direct violation of treaties made by Congress. Frontiersmen even tried to organize filibustering expeditions to seize the Floridas and New Orleans, though at grave risk that Spain would blame the United States as a whole for these outrages. Some even talked of leaving the Union and joining Spain if Congress could not find a way to give their exports secure access to the Gulf of Mexico. Indeed, there was some talk that the best strategic solution for the problems of the United States was to disunite them into two or three regional confederacies, though in Hamil-

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ton’s view, this would risk that the different confederations might become rivals of one another, seek the aid of European powers against one another, and become satellites of the Europeans. This scenario had played itself out in most confederations from the Achaean League of ancient Greece to the Tuscan League of Renaissance Italy to the Holy Roman Empire of early modern Europe. A statesman with a sense of history could not help fearing that a collapse of the confederation in America would produce similar effects, with the result that all that he had fought for during the revolution would come to nothing ( F 6 : 35; F 2 : 13; F 3 : 13; F 5 : 27). Because the Union was beginning to recover economically from the war in the mid-l780s, a case could be made that Hamilton’s sense that Americans were in a strategic crisis was too rhetorical and highly overblown. Hamilton’s point, however, was not merely that history was on his side. It was also and more importantly that the Union was bound to collapse because it was little more than an alliance, relying for its existence and effectiveness on the good faith of the states. It is in the nature of alliances to endure only as long as they serve the immediate interests of their members. In that respect, the Union under the Articles did not establish a social compact, but a mere treaty between independent states, like the North Atlantic Treaty Organization today. Hamilton would no doubt have given his full support to those who argued that Union preceded the confederation and, thus, that Americans became a nation independent of England but not of each other when Congress signed the Declaration of Independence. Yet such words, however edifying and perhaps even true, would have been irrelevant to the political reality of 1787, when the states, not Congress, had the most political power. As long as the charter of American liberty was construed as a mere alliance of states rather than a genuine social compact formally binding Americans as one nation under one national government, the nature of the Union would tend toward disintegration, with the almost inevitable risk of wars among the states, between Congress and the states, and between the states and foreign powers ( F 15-16: 89-105; F 22: 144-46). For Hamilton, the desideratum of American independence was the ability to abide by the law of nations, which in turn implied establishing the rule of law throughout the United States. Indeed, in the case of Rutgers v. Waddington in 1784, Hamilton used his growing law practice in the service of his constitutional statesmanship. As is often the case, big constitutional questions hinged on a mundane legal quarrel. During the wartime British occupation of New York City, a loyalist had occupied a

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brewery owned by a patriot widow, who had fled the city. After the war, the widow sued for compensation under recently enacted antiloyalist civil law for trespassing on her property. Hamilton defended the loyalist by arguing that his occupation of the brewery was allowed under the laws of war, which were part of the common law and in turn had been incorporated under the constitution of New York. H e also argued that the Treaty of Paris, enacted under the Articles of Confederation, exempted the loyalist from liability for trespass. His task, in other words, was to convince the judges, first, that ordinary civil law had to give way to the constitutional law of both New York and the Confederation, and second, to declare the antiloyalist trespass law “null and void.”8In other words, he made perhaps the first American argument in favor of the supremacy of a written constitution and judicial review precisely because he feared that failure to enforce the Treaty of Paris against the states would result in thirteen independent states with thirteen different foreign and defense policies. Although this would be a nightmare for Americans, it would be an enormous opportunity for England, France, and Spain to play the states against one another. Largely because our courts tend to shy away from engaging in what they call political questions, we do not usually think of the federal courts, especially the Supreme Court, as important players in American national security policy. For Hamilton, however, federal courts were essential to ensure that treaties were regarded as part of the Supreme Law of the Land. If federal courts were established, if they came to consider themselves guardians of a written constitution, and if they applied the treaty power against the states, then the United States could have a united foreign and defense policy. As Adam Smith observed, the invisible hand is not simply natural. It requires the rule of law (and thus statesmanship to establish that rule) in order to become second nature for modern commercial people^.^ Likewise, what we take for granted, that the states will uphold rather than sabotage our foreign and defense policies, did not arise from an invisible hand. The federal courts are the almost invisible hand that makes it possible for us to speak and act as one nation in our relations with foreign nations. O n the one hand, they deter the states from violating international law and our treaties with foreign nations. This minimizes the possibility that an errant state, pursuing its own foreign and security policy, might provoke a war with a foreign power that might drag the entire nation, against both its interests and its inclinations, into war on that state’s behalf. O n the other hand, the courts enable us to speak with authority to other nations because we can speak as one people. The mere

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thought of opposing a united America might then suffice to deter other nations from doing so ( F 3-4: 13-27; F 22: 143-44; F 80: 534-41). Deterrence, however, works best when coupled with a demonstrated capacity for self-defense, which often requires the ability to take the offensive against a nation’s rivals and enemies. In other words, it requires not merely military power, but often the ability to project such power abroad. In theory, Congress, under the Articles of Confederation, had the authority to build a navy and raise as large an army as necessary to secure American independence. In practice, said Hamilton, the states had a de facto veto over American national security policy because it was left to them to execute congressional requisitions for men and money in both war and peace ( F 15: 93). The result, this war veteran concluded, was that the states most in danger from the enemy during the revolution contributed the most to the common cause. Those isolated from British attack contributed little, or even obstructed efforts to supply the means necessary to win the war. With enormous amounts of French aid, Washington was just barely able to keep an army in the field long enough to win the decisive battle against General Cornwallis at Yorktown, but the next war might be different. The French might become America’s enemies rather than serve as its allies. Americans would therefore have to rely on their own resources, but how? For Hamilton, constitutional reform was partly a means for military reform. H e had been advocating a rapidly expandable professional army since 1783, when he chaired a postwar congressional committee responsible for establishing the “military-peace establishment’’ of the United States. He tinkered with the plan for seventeen years, but its essential rationale and outlines remained the same. Sooner or later, Americans would find themselves at war again, perhaps even on their own territory, with a major European power, the kind most capable of inflicting serious damage on them. The militia had proved essential to American victory over the British during the revolution, but they were not sufficient. They lacked the discipline, equipment, and training to stand up to a modern European army on their own. Yet the cost of the large armies of continental European powers was far beyond the meager means of Congress for as far into the future as most Americans could see. Moreover, American distrust of standing armies was so strong that it was unlikely there would be a constituency for a sizable army, and certainly not for long (Report on a Military Peace Establishment, June 18, 1783, P 3: 381-83).

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Compared with the rest of Europe, however, England had managed to avoid a large standing army while still providing for its security. The union of England, Scotland, and Wales had enabled the British to take advantage of their insular situation. Since they had relatively little fear of war at home, they could concentrate for defense on their navy, while keeping a small army for both internal security and foreign expeditions. Likewise, Hamilton thought, Americans might get by with an extremely small professional army of three thousand officers and men, but only if they developed a substantial navy capable of tilting the balance of power in competitions among European powers in the New World. The army, however, was to be constituted so that it would be capable of almost infinite expansion (according to the nature of the threat) because the fundamental job of the professionalswould not be to fight wars themselves, but to teach reservists and raw recruits called up in crises how to be soldiers. As crises faded, the army would then demobilize, thus saving Americans much money and many worries about the dangers standing armies might pose to liberty. This plan to mobilize and demobilize quickly has been the cornerstone of American national security policy ever since Hamilton first devised it. It is how Americans generated a citizen army safe for liberty during the Civil War, the world wars of the twentieth century, including the Cold War and even the GulfWar. Partisans could dispute whether Americans were mobilizing or demobilizing the army quickly enough, according to their perception of the crisis at hand, but the capacity to do so, rooted in the semi-insular situation created by the Union, is the product of Hamilton and the Constitution of 1787 ( F 8: 47-50). Under most circumstances, however, a powerful navy would make it unnecessary to mobilize a substantial land force. By projecting their power at sea, which would be essential if Americans desired to be a commercial nation, Americans could keep war far from their shores, and no less importantly, carry war to their enemies. Not coincidentally, then, Hamilton believed a maritime strategy would have substantial collateral benefits for liberty at home ( F 8: 49; F 11: 68-73). Unlike many of his contemporaries, he never confused a free government with a republican one. When he looked abroad for the most durable free government in the world, he saw England, which had a king and hereditary aristocracy to be sure, but also a rule of law rooted in the consent of the commons, a free press, competitive elections, and most of the institutions we associate with free government today. Liberty fared much worse among the continental powers of Europe, which lived in such fear of attack by land that they were com-

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pelled to maintain large, expensive armies in time of peace. Frequent wars led not merely to arms races, but a virtual race toward despotism, as each of the continental powers found it necessary to concentrate ever more power in the hands of their executives, and the people, terrified by war, willingly acquiesced. By means of its navy and union, however, England had not only avoided that problem, but shifted power toward the legislature, in large part because it had little fear of invasion ( F 8: 46).

UNION England’s favorable insular situation, both for defense and for liberty, suggests why union was the second most important means in Hamilton’s grand strategy for American liberty. Union could transform the United States into a de fact0 island, especially if the other European powers were gradually expelled from the western hemisphere. A maritime strategy would be essential for that end, but also make it much less likely that the Americans would follow in the dangerous footsteps of continental European powers. Yet if Americans did not have a firm union, they might well re-create the conditions of continental Europe in North America and suffer exactly the same consequences.What worried Hamilton most was the impact of frequent land wars on the American spirit of liberty. As he said: Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a while, give way to its dictates. The violent destruction of life and property incident to war-the continual effort and alarm attendant on a state of continual danger, will compel nations, the most attached to liberty, to resort for repose and security, to institutions, which have a tendency to destroy their civil and political rights. To be more safe, they at length, become willing to run the risk of being less free. (F 8: 45)

This passage from Federalist #8 is sometimes construed to show that Hamilton, and perhaps even his other collaborators in The Federalist, were crude Hobbeseans, willing to sacrifice everything, even liberty itself, for the sake of repose and security. A closer reading, however, suggests Hamilton meant something different.War, said Thucydides in his account of the civil war in Corcyra, is a “harsh teacher” that often erodes the foundations of civilization.1° If the spirit of liberty, one of the finest fruits of civilization and the one that made it possible for Americans to undertake

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their revolution, were to endure, then it was absolutely essential to ensure that Americans felt safe from the dangers of war, lest the desire for selfpreservation (and even far uglier passions) trump their love of freedom. To be sure, the spirit of liberty has many roots, some of which Hamilton, perhaps to his discredit, rarely discussed, such as local government or a sense of principles written in the hearts of Americans that might come through or be reinforced by a bill of rights as a kind of secular Ten Commandments. Correctly, however, Hamilton believed these schools of freedom were not likely to match the terrifying, indeed brutalizing school of war if it occurred on American soil. So valuable as these other schools may be for nurturing the spirit of liberty, it was radically more important to prevent Americans from learning the wrong lessons from war, which crushes the spirit of liberty by teaching human beings to accept any authority, as long as it can make them feel safe. In that respect, nothing was more important for preserving the spirit of liberty than a durable union. So what could make the Union endure? Hamilton supplied an answer on June 18, 1787, at the Federal Convention. He believed the Union at the time was weak because the balance of power between Congress and the states was overwhelmingly in favor of the states. Not only did they have a de facto veto over acts of Congress, but also they had much stronger popular support. There are five main props of government, Hamilton said: interest, ambition, fear, custom, and honors. Custom was on the side of the states, which had existed as colonies long before they joined the Union. Because Congress had little power, men of ambition would serve themselves best by serving in the state governments. Since Congress had no money, it had few offices to bestow, so it had little attraction for those moved by interest and a desire to look important. Congress had no authority to enforce its laws against individuals, but the states had the last resort of the rule of law: sanctions, including the ultimate punishment, legal execution, to instill fear in the lawless. If the balance of power in the Union favored the states too much, then the only practicable solution was to shift the balance of loyalties on which that power was based. The national government would have to have the ability to instill fear in the lawless, by applying laws directly to individuals through the medium of the courts. The Union would also have to acquire real power over the most important national functions of government (war, foreign policy, commerce, and finance), or the ambitious would refuse to serve in it. If it had such power, it could then bestow offices and honors. Most important, if the national government proved itself capable of administrating its dele-

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gated responsibilities more effectively and responsibly than the states, which Hamilton believed it could, especially if he set the tone of Washington’s first administration, then over time it would enjoy the enormous advantage of custom. This in turn would make Americans accept its authority out of habit and the well-grounded conviction that it was a necessary guardian of their freedom. If the national government had all five of these props on its side, then the Union would endure, or endure longer, because the balance of loyalties among Americans would have changed from favoring their own states toward favoring the Union, which of course, was not incompatible with preserving their states as well. Indeed, said Hamilton, speaking the language of realpolitik, if either the national or the state governments seemed to be acquiring too much power, the people had the option, through elections, of choosing representatives who could adjust the balance that seemed most likely to secure their liberties (Speech of June 18,1787, P 4: 207; F 17: 107; F 27: 174; F 28: 179-80; F 85: 594-95). Since we Americans consistently look to the Founders to learn how to establish and preserve liberty, it deserves special notice that Hamilton thought carefully about how to establish and preserve authority, not for the sake of authority itself, but for the sake of making authority compatible with liberty in the hearts and minds of his people. His five key props of government in his speech of June 18 are only the beginning of the story, which is about free allegiance. Men are born free, said Rousseau, but live their lives in chains. Since the bonds of authority were unlikely to wither away, the most important question was what could make authority legitimate, that is, what could make it compatible with freedom. Hamilton usually had little in common with Rousseau, but he understood that the French philosopher’s theoretical question had enormous practical significance. As Edmund Burke suggested, Americans characteristically“snuffed tyranny in every tainted breeze.’’ They would not accept any authority, however necessary, unless it was seen as a product of and safe for their freedom.ll This enduring American disposition suggests that making the Union durable was as much a problem of political psychology as anything else for Hamilton. An important part of his strategy was to cast the ratification of the Constitution as the collective act of the American people as a whole, that is, as a national social compact, rather than one between the states. That, he suggested, is what most distinguishes a political constitution from a mere alliance. Indeed, for Hamilton, establishing such a compact,

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by reflection and choice rather than the customary means of force, fraud, and accident, was a collective challenge that entitled each American of 1787, and especially the Founders themselves, to claim some share of glory as pioneers of a YZOVUSordo seclorum, a new political order for the world. They might prove that modern social compact theory was not the mere product of philosophers in their caves, but a practicable possibility in America, and by implication, for mankind itself. In that respect, what is often called American exceptionalism ought not to be treated merely as a religious phenomenon among those who cherish the vision of their country as a shining city upon a hill. Within that vision is a sense that Americans would perform a service for mankind not by crusading, but by setting an example for others to follow. Quite subtly, Hamilton made an indirect appeal to the passionate conviction among his highly religious people that their country was some kind of Promised Land, but his memorable rhetoric did not rest on faith alone. The Founding of the United States appeared to be the first great test of the enlightened theory that human beings are rational enough to establish good government through popular consent. Demonstrating the truth of that proposition, in the conduct and example of the Americans, thus offered those who supported it an opportunity to go boldly where few peoples had gone before, and none on such an extensive scale. Indeed, the combination of religious passion and enlightenment zeal might also make it a test of honor, and promise of glory, for hture generations to perpetuate what had been bequeathed to them in 1787. In that sense, Hamilton developed a sixth prop of government, and it was probably the most important of all, because it became second nature to Americans. His personal sense of mission led him to found Americans’ unique sense of national identity on the popular sense that the United States was a country with a universal purpose. To be sure, other Founders made similar claims, and later Lincoln’s poetry made this appeal a kind of political religion, but perhaps no Founder made this appeal more self-consciously, with the dual intention of using the nation’s sense of mission to support the Union, and vice versa ( F 1:3; F 11:72-73; F 22: 145-46; F 85: 594-95). Of course, not everyone agreed with Hamilton on the need for stronger government, or even on the need for a consolidation of interests and affections to make Americans a people rather than temporary allies. It was common to say that Americans were not only republicans, but a commercial people as well. Whereas the weight of tradition suggested that no large republic could be durably free, enlightened theory suggested that

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small states do not have to become members of vast empires to provide for their security. Commerce, so the argument goes, unites trading nations by their pocketbooks. Moreover, though kings and other unaccountable leaders may wage war merely for glory or personal interest, republics are compelled by their vary nature to look out for the common interests of their peoples, who (in commercial ages) want peace for the sake of trade and trade for the sake of peace. To some, this suggested that commerce alone would be a sufficient bond of American union, because, after all, Americans were rational calculators of their best interests. Since a commercial union did not involve the danger of a runaway national government, that is, of a monstrous Leviathan state, it also seemed safer for liberty to rely on trade rather than a strong national government to establish the American union.12 Since this enlightened theory is the foundation of many contemporary hopes for an end of war through the “end of history,” in which all countries w i l l become commercial republics like the United States, Hamilton’s response merits careful consideration. In the first place, commerce can divide nations as well as unite them. Interdependence is often as much a source of competition as cooperation among nations. Moreover, commerce does not necessarily replace traditional competitions for power and glory. Indeed, in modern times, commercial rivalries have been among the most common means by which such competitions take place.13 Early modern commercial societies did in fact breed imperialism, which led to war both among imperial powers and between them and the colonial peoples they sought to subjugate. Moreover, though republican government rests on the premise that the people can be rational, only a fool or a flatterer would assert that they simply are rational. They too are capable of longing for power and glory. Overweening national pride affects them as much as their leaders. Sometimes their leaders have been pushed into war against their best judgment by the fears, pride, and hatreds animating their peoples. So under no circumstances can commerce or republican government, or both, be considered a guarantee of peace among states. To assume that is to risk civil war at home and court war abroad with those who would rather fight than trade. Certainly this much is true: in Hamilton’s time, neither commerce nor republicanism had generated peace, not even among commercial republics. Far from it: the history of commerce and republican government constituted much of the history of ancient and modern warfare in Athens, Rome, Carthage, Venice, Holland, England, Spain, France, and so forth. Since there was no empirical evidence to support this

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theory, Hamilton believed it would have been irresponsible to rest the security and freedom of Americans on the mere hope that the theory might someday be proved true (F 6: 28-36). Yet Hamilton’s critique of this theory, which is perhaps more hotly contested today than it was in his own time, ought not to be construed as a simple rejection of its promise. The theory presumed that trade among the states would be free, lest trade wars lead to shooting wars. Not only would common republican principles provide the basic cultural bond of union, but also free trade among the states would help remove an aspect of early modern commercial societies (exclusive trading spheres) that had made them tools of imperialists and a frequent cause of war. In that respect, commercial republicanism, grounded in free trade, was a necessary, though not sufficient, fabric of peace among the states, and potentially between the United States and other nations. Among nations trade is made free through treaties and international agreements; within the United States, the most effectual way to make trade free was to give the national government power to regulate commerce, for the sake of promoting as much commerce as possible among the states, lest trade wars among the states issue in shooting wars as well. In that crucial respect, Hamilton’s famous argument in Federalist #6 is less a critique of enlightened theory than a prudent adjustment necessary to make it effective within the Union (F 7: 39-40; F 22: 135-37). If Hamilton’s strategy for durable union depended on free trade, at least among the states, and if he had some (though not high) hope that free trade might also contribute to peace among nations, one must wonder how he could reconcile that strategy with his famous Report on the Subject of Manufactures, which called for tariffs. The simplest answer is that Hamilton would not have written his report if trade among the commercial nations of his time had actually been free. To practice free trade when no one else does is not prudent statesmanship, but instead martyrs one’s country for an economic ideology, which, in Hamilton’s time, was yet unproved. In the 1790s, it risked making the United States a “victim” of the international trading system, in which much American trade was excluded from European markets. Until the Europeans opened their markets, Americans would need to develop their own. In the next place, Hamilton called for both tariffs and bounties in his report. The tariffs were nondiscriminatory and designed primarily to raise revenue for his funding system, the scheme he devised to restore national credit, and one that proved enormously successful in his time. The bounties were to have

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short terms, like patents. They were not meant to protect any special economic interest. Indeed, they were less for the sake of encouraging infant industries in general than particular infant strategic industries, such as mining coal and saltpeter, forging iron, and so forth. In other words, they were designed to render the United States as independent as possible for the industrial foundations of modern warfare. In this regard, it deserves notice that war, like politics, science, and technology, goes through periods of revolutionary change. The most significant revolution in military affairs in Hamilton’s times was England’s financial revolution, on which he modeled his funding system, and its embryonic industrial revolution, which he meant to match head on. Whereas the industrial revolution vastly increased the killing power of modern weapons (and the vulnerability of nations without them), the financial revolution, based on a credit economy and a funded national debt, enabled England, and Hamilton hoped, the United States as well to pay for these weapons, when they were needed, without bankrupting the nation. Indeed, the prologue to the Report on the Subject of Manufactures states what is commonly forgotten: that Hamilton’s purpose was less economic than military, to render the nation self-sufficient in the manufactures required for war, though he recognized that by encouraging the spirit of industry and self-reliance, manufacturing would eventually strengthen the spirit of individual liberty too. He also reflected that by multiplying the division of labor exponentially, an American industrial revolution would increase Americans’ dependence on one another.Thus, this revolution could reinforce the bonds of union he hoped for from free trade among the states. True, he was myopic about the impact of this revolution on women and children, whom he thought might benefit from employment in factories, but most strategic plans have unintended consequences. H e was not encouraging exploitive labor practices. Instead, he was trying to make Americans united and self-reliant, both in their conflicts with other nations and in their mode of making a living, and he largely succeeded, though less through his Report on the Subject of Manufactures, which Congress failed to pass, than through his funding system, which created the capital required to produce Hamilton’s industrial revolution (Report on the Subject of Manufactures, December 5, 1791, P 10: 231-35,261-66,291,299-301,313-17,334). Much is often made of Hamilton’s funding system as well as his proposal for a national bank in the 1790s as none too subtle means to tie the interests of the wealthy to the survival of the Union. The more they invested in government securities, the greater the stake they would have in

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the perpetuation of the Union. Since their influence was disproportionate to their numbers, it was essential to turn these men’s interests to the side of the national government as quickly as possible. Yet there was much more to Hamilton’s funding system than that, and much more to his political psychology of free allegiance too. Another revolution in military affairs was just beginning to happen. It is most commonly ascribed to the French Revolution, which produced a nation in arms, that is, mobilized an entire people for war against more traditional continental powers fighting with small professional forces. The American Revolution anticipated not only the French political revolution, but also their military revolution, because it gradually mobilized a people, both numerous and armed, to defeat the professional forces sent from England. Popular support, however, must be earned. In the long run, Hamilton knew Americans would not support a government they believed dangerous to their rights. H e knew through bitter experience that the army had supported itself in the last years of the War for Independence primarily through impressments, that is, by taking private property from citizens and giving them chits for which Congress promised to pay back when the war was over. At the time, impressmentswere not much different from stealing, because few could be certain that the Americans would win or that Congress would pay back citizens for their chits in time of peace. Since Congress had no revenue, virtually no one had confidence that it would pay off its debts. O n the one hand, Hamilton worried about how the army would be funded in the next war. If it resorted to impressments again, might not many Americans come to consider the army as much a threat to their rights as the enemy? How could a republican army wage a war effectively without popular support? Would it even deserve popular support if its necessities proved as dangerous to American rights as enemy offensives?O n the other hand, Hamilton understood the direct link between credit and public confidence. Credit comes from the Latin word, credere, for faith. When citizens lend money to government, as they usually must in time of war, they lend not only money, but also faith that they will be paid back. Their faith in the government, which is a tangible form of civic virtue, even has an index: the securities market. When government securities rise in value, this shows that citizens’ trust in and willingness to take risks in support of the government have increased; when government securities decrease in value, this shows that citizens have lost faith in their government. Since the securities issued by Congress during the war had lost almost all their value, it meant that few had much faith left in Congress. Be-

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cause they had little faith, their loyalty to the national government was uncertain. To change the balance of loyalties not merely among the wealthy, but among ordinary citizens too, it was essential to give them reason to believe, first, that continental securities were as good as gold, and second, that those securities could be traded as if they were money. By funding and monetizing the national debt, Hamilton both stabilized the value and increased the quantity of money in America, which fbeled investment and led to the first great economic expansion in American history. Valuable as this may be for its tangible economic results in goods and service, the primary value of the program was intangible. It made Americans willing to trust the government with their most precious assets, and thus, made them increasingly loyal to the Union (Hamilton to James Duane, P 2: 401-17; Defense ofthe Funding System, P 19: 52-53).

ENERGETIC YET STABLE POLITICAL INSTITUTIONS The need to inspire public confidence explains a great deal about the third most important component in Hamilton’s strategy for durable American liberty: stable, energetic, and highly deliberative political institutions. In addressing this subject, another revolution in military affairs in Hamilton’s time deserves special attention, because it helps us understand how one of our Constitution’s most celebrated devices, the separation of powers, may often conduce to sound strategy. This revolution was not about manpower, finance, or industry, but rather about how to understand the nature of a war. In other words, it was a theoretical revolution with enormous practical consequences in how modern nations have thought about and waged war ever since. It was outlined in the work of one of Hamilton’s strategic contemporaries, Carl von Clausewitz, who suggested that war always consists of a paradoxical trinity. The first part of that trinity is policy, which supplies a rationale for beginning, prosecuting, and ending a war; the second is creativity,where chance and probability have the greatest effect; and the third is primordial passion, which leads us to hate an enemy badly enough to be willing to kill him. This reminds us that by its very nature, war is a violent business, that there is no peaceful form of war. Partly as a result of Clausewitz’s influence, in nineteenth-century European states it was common to assume that the government supplied not only political direction to a war, but the reasons to justify the violence war entails; that the role of the military was to find creative ways to use violence in the service

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of the political authorities; and that the function of the people was to hate the enemy badly enough and long enough to bear the costs of a war in lives and treasure.14 As both Hamilton and Clausewitz were well aware, however, this theoretical division of labor does not always work in practice. If war is to be rational, it must serve some political objective, but what if the political objective is irrational?Then strategy must be irrational too. Or what if the political objective changes over time, often as the result of competition among political leaders and parties for influence and power? Then the strategy must change too, and not necessarily for the best. Representative democracies, like the United States, were new in Clausewitz’s time, during and after the Napoleonic Wars. They also introduced new problems for balancing a wartime trinity, for when government is held accountable to the reason of the public, it also becomes more likely to be influenced by the public’s passions. Sometimes too, governments are more creative than their militaries. Indeed, when the military is stuck in a rut and wasting lives as a result, it is a fundamental responsibility of the government to find more creative ways to use violence, lest the costs of the war outweigh its benefits, or to sue for peace because both the government and the military cannot find a way to win at an acceptable cost. If a government fails to find creative ways to minimize friendly casualties and to defeat an adversary, usually by inflicting heavy casualties on the adversary, then it will usually, and quite justly, forfeit the confidence of its people. If the people are lucky, they may find peaceful ways to change their political leadership, through elections or votes of no confidence, for example, so that they can prosecute the war more effectivelyor end it on the least costly terms. If they are unlucky, however, they may have to rise up and overthrow their government, though at the risk of being caught in a civil war while engaged militarily with a foreign adversary, the situation in which Russia found itself in 1917, for example. In that respect, free elections, though most valuable for preserving consent as the foundation of government, are also extremely helpful for ensuring that necessary changes in political and military leadership occur by peaceful means and in a manner that can deny an adversary a way to exploit internal divisions for its own advantage. Indeed, said Machiavelli, this is the fundamental advantage of free societies in time of war-their adaptability. Yet there is also a grave weakness: the vulnerability of policy and therefore strategy to party politics, or what Madison and Hamilton called faction: the self-interested, a m bitious, and even ideological kind of partisanship that can blind free peo-

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ples and their leaders to their country's best interests, as many say was the case in the Peloponnesian War, when Athens lost its great campaign in Sicily not in Sicily itself, but in Athens, on the home front, where unstable and irrational policy produced equally unstable and irrational ~trategy.'~ With respect to waging war effectively and preserving liberty at the same time, a constitution meant to endure for ages must attempt something that seems impossible. It must find a rational way for political leaders to change and adapt policy and strategy while remaining essentially the same in its political structure and principles. It must enable change and adaptation because, says Clausewitz, war is more than a true chameleon.16It changes not merely its colors, but its character, perhaps even its very nature from case to case, so it is usually true that the best strategy for the previous war is the wrong strategy for the next war. Yet the kind of change demanded by war, which we must assume will occur in the future, since it has been a constant feature of the past, is frequently destabilizing politically and perhaps no more so than for free peoples. While they want minimum authority, war sometimes demands the maximum. They want a rule of law, but war may well know no laws. They want a government responsive to their immediate interests and sentiments, but sometimes, nothing is more irresponsible or self-destructive than to allow their passions to usurp the place of reason in establishing and executing policy within the well-balanced trinity that Americans too must bring to war, if they are to be successful. Consider now how the separation of powers can be interpreted to serve the purpose of giving Americans a Clausewitzian trinity capable of adapting to an ever-changing strategic environment on the one hand and preserving their government's constitutional balance on the other. Long ago, Montesquieu (who was something of a model for Clausewitz) observed that the point of separating powers of government is not to prevent governmental action, for that would prevent effective government (and effective strategy too). Instead, he said, the purpose was to ensure that when the government acted, all of its components acted more or less together, without sacrificing the responsibilities and powers that produce a semblance of balance among the parts and an opinion of security from abuses of power among the pe0p1e.l~In other words, the point was to enable a government to adapt to a changing world without a de fact0 coup or revolution that changed the form of the government from a free to a less free one. This Montesquieuean strategy to combine strategic adaptability with constitutional stability permeates everything Hamilton wrote about Congress, the executive, and the judiciary.

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In the case of Congress, for example, some antifederalists at the New York Ratifying Convention objected strongly to the powers granted Congress to tax, borrow, and spend for war by simple majority votes. This, they feared, would perhaps allow members of Congress to drag the nation into unjust wars of ambition and national aggrandizement, which sometimes happen in the life spans of all nations, including republics. Witness, for example, President James Polk and the democrats in the Mexican War of 1848, which seemed designed primarily to serve Polk‘s ambitions and the interests of Southerners to expand slavery. To this sort of objection, Hamilton responded with several rhetorical questions. Which is better, to risk that, occasionally, the nation might wage unjust or imprudent wars, or to deny a simple majority the means to provide for the common defense against the injustice or ambition of other nations? If, as some suggested, the required constitutional majority to declare and fund a war were raised to two-thirds or three-fourths, would Americans observe that parchment barrier in time of danger? Likewise, some suggested that a bill of rights, which the Constitution sorely needed, ought to include a ban on standing armies in time of peace, but the business of soldiering cannot be learned in a day. Out of fear of military despotism, would opponents of the new Constitution deny the nation the means to train, plan, and organize its military long before the winds of war became a tempest? Would such constitutional limits even be heeded in time of danger that was not quite yet war, in a cold war or warm peace, for example? All political powers, most especially those related to the military, are dangerous and liable to abuse, but would Americans fear one another more than their potential and actual enemies abroad? The harsh truth was that the powers required for the support and direction of the armed forces had to exist “without limitation: Because it is impossible t o foresee or deJine the extent and variety of national exigencies, or the corresponding extent and variety of the means which may be necessary t o satisJj them. The circumstances that may endanger the safety of nations are infinite; and for this reason, no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” Either such shackles would be effective or not. If effective, they would cripple the government in its efforts to secure American liberty by securing American independence, as Hamilton believed the Articles of Confederation had done during the revolution. If fear trumped constitutional scruples, however, the shackles would be ineffective and produce the opposite of their intended result by teaching political leaders to disregard the Constitution in time of

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crisis and the people to put up with such behavior as a necessary prerogative of statesmanship. Sometimes such a prerogative may be unavoidable, but it was not safe for durable liberty to build the temptation to exercise it into the Constitution itself (Third Speech at the New York Ratifying Convention, June 21,1788, P 5: 54; F 23: 147; F 25: 163). It mattered significantly to Hamilton that Congress was a bicameral institution that might combine responsiveness to the people in the House with a sense of responsibility for their long-term interests in the Senate. For strategy to be rational, policy must be rational first. Sympathy in the House with the people was a reasonable security that in supporting a war, that branch would usually have no desire to abuse its powers. In most circumstances, it was also unlikely to tolerate such abuse from others. In contrast, the Senate, with its experience, greater independence, and deliberative character, had the potential to moderate the passionate element of Clausewitz’s trinity so that it would not prevent a rational calculation of the demands of American principles and political prudence in the initiation, conduct, and termination of a war ( F 23: 150; Speech at New York Ratifying Convention, June 24, 1788, P 5: 68-69). This division of constitutional functions in time of war applied in Hamilton’s mind to the executive perhaps most of all, because, as commander-in-chief, the president was most responsible for articulating American defense policy on the one hand and ensuring that the military devised creative strategies to serve it on the other. To play that role in America’s wartime trinity, Hamilton argued that the defining character of the American executive had to be energy, which has several different forms. The first is speed, understood as the ability to act decisively, for which nothing was more important than unity, defined as one person, the president, having the authority to direct the armed forces amid the constant flux and seemingly impenetrable fog of war. Energy is not the same thing as wisdom, but sometimes, the wisest thing to do is to act energetically, either by exploiting an unexpected opportunity or by getting out of the way of unanticipated danger. Indeed, in Hamilton’s first wartime proposal for a new constitution in 1780, when army morale was low and public confidence in the government had reached its nadir, Hamilton suggested that such energy was no less important for arousing and sustaining the passion of the people and the army to persevere despite their suffering than it was to direct the armed forces effectively. So the executive was responsible for holding the American trinity together in a manner that generated a sustained will to fight on the one

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hand without being overwhelmed by the primordial passion fighting inevitably produces on the other. An equally important form of energy is stamina, or the personal firmness of the executive,which Hamilton argued would result primarily from his term of office and the opportunity for reelection (Hamilton to James Duane, September 3, 1780, P 2: 401-17; F 71-73: 471-92). Because Hamilton knew war personally, he had no desire to wage it unless it was the last practicable resort for securing American rights and independence. Yet because war is at least as common as peace in the ordinary course of nations, he understood that Americans had to become ready for war rapidly, in the 1790s, before war came to them. For that end, Americans needed an executive steady as a rock, the sort who could listen to good strategic advice and stick to his decisions, even though they aroused ever growing popular opposition. He found that man in George Washington, who needed Hamilton’s pen as much as Hamilton needed his stature with the American people. Unfortunately for Hamilton, Washington, and the new American republic, the French Revolution of 1789 initiated the first modern world war. Fearing attack from Austria and Prussia, which meant to restore the French monarchy, the new French republic declared war on them in 1793. That war, which soon involved all the major powers of Europe, did not truly end until the defeat of Napoleon and the Congress of Vienna in 1815.Though, initially, many Americans, especially the republican opposition and its leaders, Thomas Jefferson and James Madison, were sympathetic with revolutionary France, none wished to become involved in this war, which might well strain the limited resources and fragile institutions of the American republic beyond endurance. Hamilton was perhaps most concerned to keep Americans out of the war, because if Americans sided with France, England would become America’s adversary again at a time when his entire funding system depended on revenue generated by tariffs on imports that came primarily from England, which had joined the list of belligerents against France. Unfortunately again, Americans had a defensive alliance with France left over from their own revolution. The task of statesmanship in this case was to honor the alliance, yet act decisively and firmly to keep the United States out of the growing world war while simultaneously augmenting the army and navy, so Americans could defend themselves if they were compelled to go to war. Hamilton did this, in part, by encouraging Washington to declare American neutrality, an act that Madison and Jefferson considered blatantly unconstitutional and biased toward England. If it was Congress’s

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responsibility to declare war, then in principle, it was up to Congress to say that America was not at war, or so it seemed to Madison and Jefferson. In defense of Washington’s initiative, one of the first acts of executive energy, Hamilton wrote his Pacificus essays, which he considered his finest written work. His long-term goal remained the same: to preserve American liberty by preserving American independence and Union. In the short term, however, his goal shifted toward construing the Constitution broadly, both to defend Washington’s Neutrality Proclamation and to make similar acts of executive energy defensible in the future. One part of his argument was that Washington was charged with upholding the laws of the nation. Until Congress declared war, the law of the land was peace and the international laws necessary to uphold it. So in proclaiming neutrality,Washington merely stated his opinion, that under international and American law, America was now at peace, with a duty, to be enforced by the executive, to uphold the laws of peace. Since France initiated the war, the mutual defense clause of the treaty was not in operation. Americans were thus free, legally and honorably, to follow their best interests, which were to keep out of this war as long as possible (Pac$cus 1,P 15: 40-41). Another part of Hamilton’s defense, however, is almost always misunderstood. Hamilton argued, first, that the executive power as such was vested in the president under Article I1 of the Constitution, and second, that the right to proclaim neutrality was by its very nature an executive power. This was true, said Madison in his response, the Helvidius essays, only in monarchies, where decisions on war and peace are traditional executive prerogatives.The United States is not a monarchy, but a republic, based on the rule of law and popular consent. Hence, the law-making branch should make these sorts of decisions, in Madison’s view, and the Constitution reinforced this theoretical argument by specifically placing the power to declare war in Congress. While making this argument, Madison quoted extensively from Hamilton’s Pac@cus essays, but in a manner that has distorted Hamilton’s argument ever since. Apparently, Madison was so sure that Hamilton meant to defend prerogative that he unconsciously inserted that term into Hamilton’s own words, though Hamilton never used the term itself, in large part because it implied a right in the executive to disregard the Constitution.l* So for almost two hundred years now, scholars have assumed this was a debate between Madison and Hamilton over whether there is such a thing as executive prerogative under the Constitution and what scope it may have. In hindsight, the debate looks absurd, because both Hamilton

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and Madison stood for the rule of law and both understood that prerogative, in the Lockean sense of acting without or against law in extraordinary emergencies, was (by definition) not a constitutional, but a natural, occasionally necessary, yet highly dangerous power. Granted, extraordinary circumstances might justify asserting prerogative, and then, as Locke said, the people must judge whether it is defensible, but Hamilton was actually trying to translate a different theme of Lockean social compact theory into American practice. For Locke, there are not three, but five powers of government: executive,judicial (which he sometimes included in the executive), legislative, federative, and prerogative. The federative power is different from prerogative, because it is not about acting without or against the law, but rather applies to how one nation conducts its relations with others. In theory, Locke suggested, the federative power to make war and peace, form alliances, and otherwise handle a nation’s relations with other nations could be placed in the legislature, but it is commonly placed in the executive because in the constant flux of changing foreign relations, shifting alliances, offense and defense, and so forth, it is more prudent to place the federative power in the executive, which is most capable of acting decisively to meet emergencies and opportunities as they occur. The other great theorist of the separation of powers, Montesquieu, recognized this necessity of executive energy in foreign affairs too, though he added a good deal of conhsion to the Founders’ and subsequent American understandings of the executive power by using the term “executive power” to cover both Locke’s executive power to enforce laws at home and Locke’s federative power, to direct foreign and defense policies. Hamilton appears to have used Montesquieu’s overly vague theoretical language in order to make Locke’s highly practical point, that all things considered, it was safer to leave the federative power in the hands of the executive than in anyone else’s. When Hamilton said that the power to declare neutrality belonged to the executive, he meant that unless the Constitution specifically stated otherwise, the federative power was essentially the property of the executive. In other words, he was construing the executive power broadly, so that the American executive could meet the demands of statesmanship in foreign affairs without having to resort to prerogative, which might well undermine the rule of law at home. It is perhaps in the nature of republicans to desire to subject everything to the rule of law, but it is in the nature of foreign relations for the rule of law to stop at each nation’s own borders. Outside American borders, practicality required enabling the executive to adapt to a continually adapting w0r1d.l~

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Indeed, for Hamilton, this adaptability, or energy as he called it, was the quasi-Aristotelian golden mean between unconstitutional acts of prerogative that might undermine the republican rule of law on the one hand and constitutional weakness on the other. If the executive were constitutionally incapable of proclaiming neutrality or otherwise leading in time of crisis, if Americans had to wait for Congress to do so, then in some cases the danger of war might be so great that the executive might have to choose between his duty to uphold a strict construction of the Constitution and his responsibility to protect Americans, their independence, and their Union on the other. Since independence and Union are vital to American liberty, the purpose of the Constitution, to secure liberty, might therefore be undermined by a strict construction of its meaning. The executive’s higher duty might therefore be to sacrifice the letter to the spirit of the Constitution. On the other hand, an executive whose powers included every federative power not specifically delegated to Congress would be much less likely to have to face the dilemma. For the sake of preserving constitutional forms on the one hand and adapting to the necessities and accidents of war on the other, energy in the executive was safer for both liberty and the common defense.20 SECURITY AGAINST ABUSE OF POWER

So once again, we come back to the judiciary, which Hamilton hoped would uphold his philosophy of broad construction. In all reason, Hamilton could not have anticipated that the first great chief justice, John Marshall, would be a younger and (if only because he avoided duels and other unnecessary quarrels) more prudent version of himself. Despite the darkest hours of federalist defeat in 1800, Marshall proved exceedingly skillful, in such cases as McCulloch v. Maryland, for example, at providing legitimacy to the kind of energy Hamilton expected from Congress and the president. By making energy constitutional, one might say that Marshall and Hamilton made prerogative much less necessary and the rule of law much more durable. In response, one might also say, as Jefferson, Madison, and the republicans said frequently, that in reality Hamilton and later Marshall disguised fundamental changes in the constitutional balance in the garb of broad construction. This of course is the fundamental danger latent in broad construction, but Hamilton’s fourth priority in his list of means to secure American liberty provides substantial (although not complete) security against that danger arising frequently.

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It was not by denying the government the energy to respond to and

shape crises, especially war, that Americans were most likely to make their liberty durable. Instead, it was by means of the “internal structure” of their Union, as long as they remained independent ( F 23: 1.50).Elections, checks and balances, new nominations to the judiciary and cabinet posts were all structural means that Americans might use to make it likely that the necessary energy of government was not abused. Because fears of abuse of one power or another most animated Hamilton’s opponents in 1787, the bulk of Hamilton’s defense of the Constitution, as well as Madison’s, in The Federalist is devoted to explaining why the structure of the Constitution had reasonable odds of making the necessary powers of government safe to the people’s liberty as well. Since no system is perfect, and every power is liable to abuse on some occasion, this seemed to be the most they thought any constitution could do to make sure that necessary powers were used in necessary and proper ways. Rather than deny those necessary powers, they took a calculated risk that the internal structure of the government would more than generally direct those powers in the service of American liberty. More they could not promise; to demand more was to demand more than any constitution could deliver. Nonetheless, these checks, though vital to control the government and essential to free government, turn out to be the least important means to secure liberty, at least in Hamilton’s strategy. Before there could be federal elections, hearings on the nominations of judicial appointees, vetoes and overrides, that is, before the Constitution we learn about in civics courses could operate effectively, the United States had to be an independent nation. It had to be united not merely through its political institutions, but in its heart and mind. It had to have the power to defend itself by adapting to the ever-changing nature of war. Then it could worry about making the necessary powers of government as safe to the people as the nature of politics permits. Then there would be reasonable odds that as the nation changed under the pressure of the necessities and accidents of war, it could remain essentially the same in its political constitution. There is no escape from this: the business of combining what is necessary for war with what is necessary for liberty is scary, full of uncertainty, and subject to no failsafe solutions. In that regard, Hamilton’s approach to the American social compact can be compared to the pioneering work of eighteenth-century physicians experimenting with vaccinations. The vaccines had to be developed from the germs of the diseases they sought to control. For Americans to defend themselves without resorting to tyran-

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nical means, they had to inoculate their Constitution with potentially unlimited war powers while developing antibodies to keep those powers under control. Many died of inoculationswhen they were first developed, yet many more died because they had not been inoculated. The most unfortunate were those who had a chance to be vaccinated, but rehsed to do so out of fear of catching the disease, only to later contract the disease. Likewise, one can say that Hamilton’s broad construction has helped some of his successors, who meant less well, to abuse their powers, yet broad construction has also allowed many more to provide for the common defense within rather than outside the limits of the Constitution. After more than two hundred years, the American Constitution has gone through many changes, some of which have been fundamental, and not all of which Hamilton would have been likely to approve. Yet had he lived to see his country adapt to and prevail in the great wars of the twentieth century with its liberties essentially intact, and often enhanced, he would have had ample reason to consider his calculated risk (which is all that strategy is about) that the American social compact could combine constitutional stability with strategic innovation justified amply by events.

NOTES 1. See Herbert J. Storing, “The Constitutional Convention: Toward a More Perfect Union,” Works of the Mind Lecture for the Basic Program in Liberal Education, University of Chicago, 1961. 2. Alexander Hamilton to James Duane, September 3,1780; Speech of June 18,1787; Remarks in the Constitutional Convention on the Signing of the Constitution, September 17,1787, in The Papers ofAlexander Hamilton, ed. Harold G. Syrett and Jacob E. Cooke (New York Columbia University Press, 1961), 2: 401-17; 4: 253. Whenever practicable, citations from Hamilton’s Papers will be cited parenthetically in the text of this essay and listed as, for example, P 2: 207, P 3: 104, with the first number citing the volume and the second the page. 3. For Hamilton’s role at the New York Ratifying Convention, see especially Linda Grant De Pauw, The Eleventh Pillar: New York State and the Federal Constitution (Ithaca, N.Y.: Cornell University Press, 1966), and Robin Brooks, “AlexanderHamilton, Melancton Smith, and the Ratification of the Constitution in New York,” William &Mary Quarterb 24,3rd ser. (1961): 339-58. 4. For Madison’s objections to the new Constitution, see James Madison to Thomas Jefferson, October 24, 1787, in The Papers of James Madison, ed. Robert A. Rutland (New York Columbia University Press, 1977), 9: 209.

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5. O n the supposed incompatibility of strength and freedom, see for example, Thomas Jefferson to James Madison, December 20, 1787, in The Portable Jeferson, ed. Merrill D. Peterson (New York Penguin Books, 1985), 431. “I am not a friend of very energetic government,” Jefferson said. “It is always oppressive.” 6. Federalist 1: 6-7; 15: 90; 23: 146; and 37: 231. Federalist #37, by Madison, in the period of his career when he seemed to have the most in common with Hamilton, is almost a new introduction to The Federalist, or perhaps better put, an introduction to what is probably the most fundamental problem of The Federalist, that is, the one that makes the text .a classic of durable interest, both theoretically and practically: the problem of combining the requisite energy and stability, not to mention wisdom and responsibility, in any good government with the inviolable attention due to liberty and the republican form of government that was demanded, quite rightly, by the American people ( F 37: 233). Whenever practicable, citations from The Federalist, by Alexander Hamilton, James Madison, and John Jay, ed. Jacob E. Cooke (Middletown, Conn.: Wesleyan University Press, 1961) will be cited parenthetically in the text of this essay and listed as, for example, F 15: 91, with the first number citing the volume and the second the Page. 7. For a useful appreciation of the strategic and diplomatic position of the United States during the framing of the Constitution, see Frederick W. Marks 111,Independence on Triak Foreign Policy and the Making offhe Constitution(Wilmington, Del.: Scholarly Resources, 1973).See also Hamilton, who argued that the inability of Congress both to uphold its obligations under the Treaty of Paris and to punish violations of that treaty by England had brought the United States to “the last stage of national humiliation” ( F 15: 91). 8. Hamilton’s brief for Rutgers v. Waddington,in The Law Practice ofAlexander Hamilton, ed. Julius Geobel (New York: Columbia University Press, 1964), 1: 296-97. 9. Adam Smith, The Wealth ofNations (New York Modern Library, 1937), 5, 2: 669-80. 10. The Landmark Thucydides, ed. Robert Strassler (New York: Free Press, 1996),3: 82. 11. Jean-Jacques Rousseau, On the Social Contract,ed. Roger D. Masters, trans. Judith R. Masters (New York St. Martin’s Press, 1978), 46; Edmund Burke, Speech on Moving Resolution for Conciliation with the Colonies (1775) in Select Works ofEdmund Burke (Indianapolis: Liberty Press, 1999),237-43. 12. See, for example, the first and seventh letters of Agrippa, November 23 and December 25,1787, in The Anti-Federalist, Writingsby Opponents of the Constitution, ed. Herbert J. Storing (Chicago: University of Chicago Press, 198l), 230-43, and Charles Secondat Montesquieu, The Spirit of the Laws, trans. Thomas Nugent (NewYork Hafner, 1949),9,2: 127-28; 11,3: 150-51; 20,l-2: 316-17; 21,14: 358-59.

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13. In that respect, Lenin was right, though for the wrong reasons, because he mistook the imperialist stage of capitalism for its last stage. V. I. Lenin, Imperialism the Highest Stage of Capitalism (Peking: Foreign Language Press, 1975). 14. Carl von Clausewitz, On War, ed. Michael Howard (Princeton, N.J.: Princeton University Press, 1976), 1, 1: 89. Hamilton, of course, never read Clausewitz, whose value here is revealing the kind of strategic problems any durable constitution must face. 15. Machiavelli, Discourses on Livy, 3, 9: 452, in Macbiavelli, the Chief Worh and Others, trans. Allan Gilbert (Durham, N.C.: Duke University Press, 1989), vol. 2; Landmark Thucydides, 2: 65. 16. Clausewitz, On War, 1, 1: 89. 17. Montesquieu, Spirit of the Laws, 11,6: 160. 18. Madison made several errors while transcribing from Pacz$icm. He wrote “In support of this conclusion [that Hamilton was supporting prerogative] it would be enough to echo, ‘that the prerogative, in this active sense, is connected with the executive in various capacities-as the organ of intercourse between the nation and foreign nations-as the interpreter of treaties. . . .as the power which is charged with the execution of the l a w - a s the power which is charged with tbe command and execution ofthe publicforce.”’ (Marvin Meyers, ed., The Mind oftbe Founder: Sources o f the Political Thought of James Madison [Hanover: University Press of New England, 19811, 210-11. The quote is from Madison’s Helvidius, Letter 4, emphasis in the original.) Hamilton’s actual words were that the power to declare neutrality “appears to be connected with executive in various capacities, as the organ of intercourse between the nation and foreign nations-as the interpreter of treaties when the judiciary is not competent, that is the cases between Government and Government-as that Power which is charged with the Execution of the Laws, of which treaties form a part,-as that power which is charged with the command and application of the Public Force” (Pac$cus 1,P 15: 38). Although Hamilton did not use the term prerogative in this passage or anywhere else in Pac$cus, Madison used the term three times in the passage preceding his misquotation from Hamilton, thus creating the illusion that Hamilton’s own words supported his conclusion. Madison also left out Hamilton’s qualifjmg phrase, “where the judiciary is not competent,” thus ignoring the role Hamilton advocated for the courts as interpreters of treaties. Failure to compare what Hamilton actually said with what Madison attributed to Hamilton has thus led scholars to adopt Madison’s version of the debate, in which he crusades for the rule of law against a straw man Hamilton bent on monarchizing the executive with prerogative. In truth, Hamilton was advocating energy in the executive, based on its retention of every federative power not explicitly transferred to Congress in the text of the Constitution, in order to avoid the twin dangers of constitutional weakness and unlawful prerogative. The term “prerogative”occurs eighteen times in The Federalist, with Hamilton using it ten times and Madison using it on eight occasions. In no case, however, do they use it in its Lockean sense. Instead, they use it in a

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more traditional sense of an act of judgment belonging to one part of a government or another. Why do they not invoke Locke? Because they were not fools! You can’t sell a constitution to the American people while speaking the harsh truth that sometimes, and quite regrettably, even the freest governments must act without or against law. Precisely because Hamilton understood this fact in The Federalist,he did not resort to prerogative in Pac$icus. Instead, he innovated by incorporating federative under executive power, thus making prerogative less necessary and less likely in the executive. See The Federalist Concordance,ed. Thomas S. Engeman, Edward J. Erler, and Thomas B. Hofeller (Chicago: University of Chicago Press, 1988),420. 19. John Locke, Second Treatise of Government, in Two Treatises of Government, ed. Peter J. Laslett (Cambridge: Cambridge University Press, 1991), 364-66: 143-48; 374-80: 159-68; Montesquieu, Spirit of the Laws, 11,6: 151; Pac$icus 1. P 15: 39-42. Hamilton actually invoked the term “federative power” in his defense of the Jay Treaty. See The Defense 37,6 January 1796, P 20: 9-10,16,20. 20. In considering the wartime merits and demerits of Hamilton’s broad construction, compare, for example, the Constitution of the United States with the Constitution of the Southern Confederacy during the American Civil War. A broad construction of the former supplies the means for Congress and the executive to act with energy in times of both foreign and civil war. The latter was not only informed by strict constructionist principles, but was something of a throwback to the Articles of Confederation, because it was a compact between independent states rather than among the people as a whole. The former enabled the government to prosecute a long and bloody war to preserve the Union while, for the most part, remaining within its traditional constitutional forms. The latter was so dependent on the states that it was crippled, by its very constitutional forms, from generating sufficient arms and wealth to defend itseK Perhaps the Confederacy would have been defeated even if it had possessed a better constitution, but this contest was closer than many think, and one cannot simply assume that victory of the Unionist side was inevitable. Hence, one cannot help wondering whether the South died of a cause: states’ rights and the strict construction of legislative and executive powers it produced.

*d>* John Adams’ “Hobbism” John Paynter

z k e many other American revolutionaries and founders, John Adams grounded his political prescriptions on an understanding of man and on the principles of justice that he saw as rooted in the social contract tradition. He did not, however, simply appropriate a stock rendering of that tradition. O n this topic, as in most matters, Adams was his “own man,” devoting much of his reading and reflection as a young teacher and law student to the task of working out for himself a true account of political justice. The result of his reading and reflection was a reformulation of the social contract paradigm that not only reaffirmed certain principles already developed, but also sought to correct what Adams judged to be a significant flaw in that tradition. For Adams, such a rethinking of the contractarian understanding of justice was made necessary in part by the social contract tradition itse1f.l As he read various accounts of the contractarian understanding of justice, he saw that some of the authors of these accounts disagreed among themselves about major elements in their conception of political justice. Indeed, between Thomas Hobbes and John Locke, the leading advocates of the social contract paradigm as Adams received it, he discerned disagreements on matters of the greatest importance to any friend of liberty. More specifically, he understood Hobbes and Locke as disagreeing on three fundamental questions: Is there a moral ground for political life; What are the psychological materials out of which men can fashion a political community that is faithful to those moral standards; What form of government is best suited to such a community? In Adams’judgment, these differences were so fundamental that he praised Locke for his defense of 231

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liberty, while he condemned Hobbes’ new science of politics as hostile to freedom. Until rather recently, few Americans would have disagreed with Adams’ conclusion that Hobbes and Locke differed on fundamental matters and that Locke, not Hobbes, should be taken as the trustworthy and wise mentor of free human beings. But in the most recent book-length study of Adams’ political thought, C. Bradley Thompson claims that Adams embraced “a modified Hobbesian-Lockean teaching’’ about natural law.2The claim implicitly accepts the assimilation of Locke to Hobbes, an idea that would have shocked Adams. But what might have disturbed Adams even more is Thompson’s subsequent effort to identify Adams’ “modzjiedHobbesian-Lockean” understanding of natural law and political justice, an effort that does not recognize Adams’ most fundamental departures from Hobbes. The aim of this chapter is to compare Hobbes and Adams on the three questions raised in the preceding paragraph in order to understand more precisely whether Adams was dependent on Hobbes and in what ways he departed from Hobbes’ political teachings.

HOBBES’ SCIENCE OF POLITICS To assess this claim that Adams was a modified Hobbist, we need first to recall the key elements of Hobbes’ science of politics. Adams used the phrase “selfish system”to describe Hobbes’political teaching3That phrase captures an intention that animates virtually every aspect of Hobbes’ system, namely, to understand all human acts as expressions of the desire to preserve one’s self, and on the basis of that understanding of man’s nature, to proffer a daring new understanding of political justice. Hobbes was l l l y aware that his new science flew in the face of the conventional moral teaching of his day, including especially the teachings of the tradition of natural law as it was received in Hobbes’ time. In his more tendentious critiques of that tradition, he strongly suggested that natural law advocates condemned the concern with self-preservation. In fact, the teachers of natural law as Hobbes received it had expressly acknowledged the good of self-preservation. But they had relegated it to the lowest place in the hierarchy of all human goods. For the advocates of natural law, the actions intended to preserve one’s self were to be ordered toward and restrained by human goods that constituted “living well.” In relation to such goods, “mere life” was a necessary condition, but once a man had provided for

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sustaining his life, his attention was to be devoted to the human good or ends made known by reason, which were understood in the main as the right ordering of one’s soul, contributions to the common good, and unity with God, all comprehended in the understanding of our purpose in life as imitating These allegedly higher goods, Hobbes thought, were in fact implanted in the imagination of ordinary citizens by ambitious men bent on exploiting the many for the advantage of an elite few.5 It was this older claim that men’s concern for their own preservation should be constrained by distinctively human goods that Hobbes challenged and sought to destroy in his new science of politics. Such teachings, he argued, had the effect of denigrating, or worse, making illicit in men’s minds, the kinds of action necessary to attend effectively to their own preservation, including the kind of political order best suited to serve this end. That is especially the case, according to Hobbes, if we include in the notion of selfpreservation not only “the security of a man’s person, in his life,” but also “the means of so preserving life, as not to be weary of it,’’ a condition to which Hobbes later referred as “commodious preservation” (Leviathan, 192). H e sought to liberate men’s concern with their own preservation by conceiving man as ruled by his passions, not by reason, and by viewing the desire for self-preservation as the strongest of the passions. The result for which Hobbes hoped was that the traditional understanding of the natural hierarchy of human goods would be inverted so that the erstwhile “higher”goods would become at most a means to one’s preservation, subject to the same criteria of utility as are any other means to that end. As Hobbes put the matter: “the writers of moral philosophy” did not see that the virtues are to be valued only insofar as they are “means to peaceable, sociable, and comfortable living” (Leviathan,216). Hobbes’ most lucid formulation of this turning of the traditional view on its head appeared in the first chapter of The Citizen. There he began his assault on the tradition with a seemingly modest statement that in fact contained the seed of everything that Adams would later condemn in Hobbes. “Among so many dangers,”Hobbes asserted, “as the natural lusts of men do daily threaten each other with . . . to have a care of one’s self is not a matter to be looked upon so scornhlly” (Citizen, 115). What Hobbes then made clear was his radically untraditional understanding of having “a care of one’s self.’’Not only did Hobbes use this phrase to bring into the center of human life each man’s concern with his own preservation; he then argued on the basis of this newly esteemed concern that each man naturally has a right to the means needed to achieve his preservation.

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But how far did this right extend? It was Hobbes’ answer t o that question that, f accepted would eviscerate the reigning morality. Hobbes began his inquiry into the scope of this right to preserve one’s self by seeking “the first foundation of natural right.’’ As the first element of that foundation he set down what seemed to be a very traditional axiom: “Every man desires what is good for him and shuns what is evil” (Citizen, 115). Certainly the traditional natural law theorists would have agreed that every man is naturally inclined toward what is good and shuns what is evil. But they would not have accepted Hobbes’ account of what is truly good for man, an account that was anything but traditional. For according to Hobbes, not the natural hierarchy of human goods, but the fear of death, and especially the fear of violent death, is at the root of all human seeking and shunning (Citizen, 115). That fear drives the concern with self-preservation, overwhelming all of the other passions, and it dictates to reason the task of a “scout or spy,” ranging abroad to “find the way to the things desired” (Leviathan,139). Furthermore, Hobbes maintained that the dominant position that the fear of death holds among the passions is not a result of human choice; rather, the fear of violent death operates in men “by a certain impulsion of nature, no less than that by which a stone moves downward” (Citizen, 115). Hence political reckoning should not treat the dominance of that desire “as if. . . there had . . . been a power and will left in one to have done otherwise” (Citizen, 115). O n this new account of human nature, Hobbes constructed his novel teaching regarding the reach of a man’s right to attend to his own preservation. Since all men are impelled by nature to fear death more than anything, it is “therefore neither absurd nor reprehensible, neither against the dictates of right reason, for a man to use all his endeavors”to preserve and defend himself from “death and sorrows.” Moreover, “whatever is not contrary to right reason, that all men account to be done justly, and with right.”This being so, every man has a natural right “as much as in him lies [to] endeavor to protect his life and members” (Citizen, 115). Since a right to the end of preserving one’s self implies a right to the means to do so, and since each man is the only reliable judge of those means as they pertain to his life, therefore each man has a natural right to anything, even to the bodies of all other men (Citizen, 116-17; my italics). In Hobbes’ political science, then, one’s duties as traditionally understood were replaced by the unlimited right of each to everything. Consequently, Hobbes concluded, whenever “many men have an appetite to the same thing, the strongest must have it” (Citizen, 115). Or to put the matter even more

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crisply, in the state of nature, “profit is the measure of right’’ (Citizen, 117). A more extreme selfishness is difficult to imagine. The resulting account of man’s natural condition is not a pretty picture. Hobbes’ rendering of the state of nature left no room for the possibility that man is naturally inclined to live with his fellows according to a shared understanding of what is just and what is unjust, in which case we would be by nature political animals (Leviathan, 110-11 and 210-11, referring to Aristotle). Hobbes’ account also excluded the view that man’s preoccupation with his own preservation is naturally benign, which would be the case if we had begun as truly asocial individuals wandering about in a plentiful natural environment, harmlessly attending to our rudimentary needs.6 O n the contrary, Hobbes saw men as natural enemies of one another, “inclined by their nature to invade and destroy one another” (Leviathan, 186-87; but consider his note in Citizen, 110).As Hobbes saw us, then, we are not literally “asocial”;we are antisocial and we are that by nature. In his construction of the state of nature, therefore, that condition is always a state of war of each against all, and in that state there are no rules or principles deriving from nature that enjoin men to pursue goods higher than self-preservation; nor is there a natural inclination in men to seek such higher goods. By this point in his inquiry Hobbes had answered the question that set his study ofjustice in motion. He had asked whether nature makes any distinction between mine and thine; his inquiry to this point compels him to answer with an unequivocal “no.” A man may call anything he wishes “his own [rather] than another man’s.’’ But his doing so “proceeded not from nature”; that is, from any standard of nature that stipulated the grounds on which an exclusive claim to something would be morally justifiable (Citizen, 92-93). In the state of nature, where the only measure of right is might, there can be no right to property in the sense that my claim of ownership excludes your claim in principle. In that condition, your alleged property, both in fact and by right, “belongs”to whomever has the power to take it and defend his possession of it. With his usual brash candor, Hobbes drew out the implications of this new understanding for the old teleology; there is no fulfillment of human nature that brings with it felicity or happiness, there is only “a perpetual and restless desire of Power after power that ceases only in Death” (Leviathan, 183-84). And in that ceaseless quest for power, nature imposes no limit on what is permissible, but only on what is possible. In the face of this assault on the core of the traditional natural law teaching, one

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might expect Hobbes to eschew the notion of natural law altogether. But in fact he erected on the new foundation of natural right a new natural law. While in Hobbes’ view, reason cannot rule the passions, it can, as we noted earlier, scout out the way to satisfy the desires. Thus reason can “suggest” or recommend to the passions, and especially to the desire to preserve one’s self, the most effective means of accomplishing that aim. The first such suggestion is to “seek peace”; the second, to be willing to “lay down the right to every thing” when others are also willing and be content with limited liberty; the third, to keep promises (Leviathan,190, 201). It is to such conclusions of reason that Hobbes gave the name “natural law,” though in Hobbes’ natural law even the basic injunction of reason to seek peace is followed immediately by a double caveat: every man is to seek peace “as far as he has hope of obtaining it,” and when others are not willing to join him, he is to use “all advantages of war” to defend himself (Leviathan,190). Following out this line of reasoning, Hobbes ultimately came to the social covenant and its fruits as the only solution to the problem of human contention. To achieve peace, he said, men would have to enter into an agreement with one another that they all would willingly submit to an absolute sovereign (Leviathan,228-29). Hobbes’ account of the wellwrought commonwealth is a deductive working out of the requirements for such sovereignty if it is to achieve its aim, that is, if it is to cause natural enemies to live with one another in peace. O r to recast the same point in terms of natural law, the well-wrought commonwealth is the means by which the “recommendations”of natural law are made effective. The human materials available for constructing such a commonwealth, according to Hobbes, are of two basic kinds: first, certain passions that are natural to man, and second, reason, which “suggests convenient articles of peace, upon which men may be drawn to agreement’’ (Leviathan,188). More specifically, Hobbes listed three passions as potentially conducive to peace: a man’s “fear of death, [his] desire of such things as are necessary to commodious living, . . . [and] a hope by his industry to obtain them” (Leviathan,188). But Hobbes made it clear that the prime mover of men is the same within a commonwealth as it is in their natural condition: “the passion to be reckoned upon,” he said, “is fear” (Leviathan,200). What changes when men move from their natural condition into a political community is not whether they fear their own death, or whether this fear holds sway in each man’s life. With the introduction of an absolute sovereign into the picture, what changes is the

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source of the threat of death. For in a well-wrought commonwealth, it is the sovereign alone who possesses the exclusive right to kill any and all of those who are his subjects. Indeed, Hobbes argued that only such a sovereign could suppress the war of each against all and thereby enable men as citizens to gain some small part of what they naturally desire. Properly understood, such an absolute sovereign is the necessary product of the social compact, for by its terms each contractor promises to “lay down” his natural right to everything and “stand aside” in the face of the sovereign’s assertion of authority. In other words, he and his fellow contractors promise to live as if the sovereign’swill were their own’ (Leviathan,227). What is the likelihood that citizens will in fact keep their promises, and especially the promise, the social covenant itself? The “force”of words is “too weak to hold men to the performance of their Covenants.”Adding an oath to a promise merely heaps weak words upon weak words. If we examine human nature, we find in it “but two imaginable helps” to strengthen the force of a man’s word: a pride or “glory” in appearing not to need to break it and “fear of the consequences” of breaking it. Since such pride is “a generosity too rarely found to be presumed on,” the primary “help”by which a sovereign holds the citizens to their promises is the schedule of punishments that he connects with the civil laws (Leviathan, 200; cf. 193). His goal is to establish for the breach of each civil law a penalty that outweighs the gain that might redound to a citizen by his breaking of that law (Leviathan, 342-43; cf. 314-15). The citizen is still moved by fear of death, but now he must always factor into his calculation of survival the likelihood of civil punishment for violating his sovereign’s will expressed as civil law. And in Hobbes’Leviathan, where the effectiveness of such fear is perfected, the penalties are so awful that they “terrorize” the subjects into behaving like law-abiding citizens (Leviathan,202). That terror makes unbreakable the “ArtificialChain” that the subjects, by their “mutual covenant, have fastened at one end, to the lips of that man, or Assembly, to whom they have given the sovereign power; and at the other end to their own ears” (Leviathan,263-64). When Hobbes first introduced the fear that could compel men to live together in peace, he identified a second “Object” of men’s fear: namely, “The Power of Spirits Invisible”(Leviathan, 200). Hobbes charged that ambitious men have used the specter of spirits invisible to oppose reigning governments (Leviathan, 704). His conclusion prescriptively was that the power of a sovereign would be sufficient to terrorize citizens into obedience f h i s power were uncontested. But a sovereign’s power would be diminished

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if his subjects’allegiance was weakened or destroyed by their belief in spirits invisible. Since Hobbes understood most men to have a natural inclination to believe in invisible spirits (Leviathan, 166-68), and since he had concluded that there would always be some men who would seek to exploit that inclination in others for their own interests, he did not advocate a purely secular commonwealth. Instead, he prescribed an established church that teaches a particular kind of Christianity and a sovereign who is the head of both the church and the state. In both The Citizen and Leviathan he spent many pages making a case that what he was proposing prescriptively conformed to-in fact, is the only account of Christianity that conformed to-the scripture embraced by Christians universally. Boiled down to its quintessence, Hobbes’ Christianity had one principle or indispensable belief, namely, that a citizen fulfills all of his religious responsibilitiesby obeying the sovereign’s dictates on all matters, including religious doctrine, forms of worship, and moral action (Leviathan, 624-26). In religious matters, as in all other matters that a sovereign considers relevant to his effective rule, a chain runs from the sovereign’s mouth to the subject’s ear. We noted earlier the passion that Hobbes did not include in his account of the human materials out of which men can fashion a world of peaceful coexistence, namely, the love of glory, which many of his predecessors had seen as the political passion. In fact, in The Citizen, Hobbes’ account of the passions that are potentially supportive of peace proceeded from a distinction between the love of gain and the love of vainglory (Citizen, 114; cf. Leviathan, 185). The former passion Hobbes saw as an expression of the desire to preserve one’s self that can be made the spring of a “temperate”life, temperate at least in behavior, if not in character. Such a man “[rlightly values his power,’’ and that right estimate tends toward an estimate of his equality with other men (Citizen, 114). The desire for vainglory, on the other hand, is an expression of the concern with one’s self that mistakenly supposes a man to be above others and that insists that others value him as he values himself. Far from tending toward temperate behavior, this latter passion is the animating force of “ambitious and hellish spirits” who are the major spur to conflict both in and outside of a commonwealth (Leviathan, 235-36). It is this passion, for instance, that leads some men to fabricate a religion they can use to deceive and control a sovereign’s subjects (Lewiathan, 124-25; cf. 341). The desire for glory is the passion least conducive to peace and most conducive to war, and that is so principally because when a man seeks glory, he desires to increase the deference he receives from others, which requires that they diminish their

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estimate of their own stature, and that is very unlikely. If one’s own glory consists of others undervaluing themselves, then that glory comes necessarily at the expense of others. In contrast, it is possible to increase the total supply of goods available to the “temperate”men whose goal is gain, so that many benefit. While Hobbes does not propose to stifle vainglory and the vainglorious altogether, he does insist that in a well-wrought commonwealth the dispensation of honor is to be controlled by the sovereign, who uses it to help turn the ambition of the few “fiery spirits” toward peace (Leviathan, 235-36). As the frontispiece of Leviathan declares, quoting from Job, only the a h l , absolute power of the Leviathan is adequate to the task of being “king of the proud” (Leviathan,71). I conclude this account of “Hobbism” by taking a quick look at the question of Hobbes’ teaching on the best form of government. One is tempted to say that Hobbes had no such teaching. He rejected the traditional distinction between just and unjust governments. He wished that the very terms that were employed in those distinctions made by the old moral philosophers would be banished from the language. In fact, he said, those who call a ruler a “tyrant”are merely ambitious men who wish to occupy the position of civic power themselves; they therefore seek to discredit and weaken the current prince (Leviathan,369-70). Yet Hobbes did not altogether reject the distinction between better and worse regimes. Instead, as he did with the old teaching on natural law, he replaced the old distinction between just and unjust regimes with a new distinction, grounded on his own science of politics, between effective and ineffective sovereigns, or what comes to the same thing for Hobbes, a distinction between the well-wrought commonwealth and the state of war. The effective sovereign is the one who causes the citizens of his commonwealth to obey his commands, with the result that they live together in peace, each applying his own industry to achieving a commodious life. The greatest determinate of the sovereign’s ability to nurture peace and prosperity among his subjects is the completeness of his sovereign power. What limits the effectiveness of some sovereigns is the failure of their subjects to “stand out of [the sovereign’s] way” as they had promised they would (Leviathan,260). Hence the remedy for such a flawed sovereignty is for the subjects to ftlfill their promise and submit absolutely. As to why one should expect any sovereigns, and especially the most powerhl of rulers, to make laws that would enrich their subjects rather than themselves, Hobbes responded that the most effective rulers will indeed want to enill be more to fill the sovereign’s coffers the rich themselves, But there w

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more his subjects produce. Recalling why men enter civil society in the first place, Hobbes asserted that the more citizens can retain of the fruits of their own labor, the harder they are likely to work, and therefore the more they will produce (Leaiathan, 260, 294-95). The connection between the sovereign’s wealth and that of his subjects will be stronger the closer the self-interest of the men or man in office is to the duties of the sovereign office. And, he added, that coincidence between self-interest and duty is the greatest when sovereignty is in the hands of one man (Leviathan, 241-42). From Adams’ perspective as a defender of liberty, it would not be far off the mark to describe Hobbes’ “selfish system” as a defense of citizens’ absolute submission to a tyrant.

ADAMS’UNDERSTANDING OF POLITICAL JUSTICE With these aspects of Hobbes’ political science in mind, we can now take up John Adams’ understanding of political justice and track down the nature and extent of his Hobbism. We begin with Adams’ most systematic and concise account of the social compact, its antecedents, and its fruits, namely, the constitution he proposed for his home state, “the commonwealth of Massachusetts,” in 1780.* More than the other original state constitutions, Adams’ proposal explicitly treats the social compact as the pivotal event in the “constituting” of a just political order. He makes the social compact his point of departure in the preamble and first chapter of his state constitutional proposal. Taken together, these first two parts constitute a “declaration of rights.” In that declaration he identifies the most fundamental principles of a just political community. Those principles range from general and fundamental laws of nature to an enumeration of specific rights that are not to be violated by government. It includes as well principles that bear directly on the form of government. And throughout the proposal, Adams gives reasons for the relevance of these principles to the “Constituting”of a commonwealth. O n the basis of this account of the principles of political justice, Adams then proposes in a second chapter a “frame”of government, specifying the allocation or “architecture”of power and the limits on that power, which in his judgment are required if the government is to be and remain just. Adams’ preamble opens by setting forth the purpose of government. Its first purpose is to “secure the existence of the body politic.” We note that he begins the entire constitution with a distinction between

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“government” and “the body politic,” a distinction essential to his understanding of the social compact. The body politic is the community of equals that is brought into being by their “social compact” with one another. It is a “voluntary association of individuals,” but one of a special kind determined by the nature of the agreement into which they enter. All power resides “originally”in this body, which in Adams’ proposal is “the people of this commonwealth.” “The people” bind themselves together, and thus become one body, by agreeing to live according to “certain laws for the common good.” In addition to securing and protecting the body politic, the common good to be sought by government is “to furnish the individuals who compose it with the power of enjoying, in safety & tranquility, their natural rights and the blessings of life.”To this end, the body politic vests “with authority” the officers of government “whether legislative, executive, or judicial.” The power of government is thus “derived from them.” This “vesting” makes the officers of government the “substitutes and agents” of the people, empowered to carry out the people’s intention when they bind themselves together as a body politic. Thus government is the instrument or agent of “the people” and, as Adams adds, “at all times [is] accountable t o them” ( Writings, 298-99, my italics). Adams concludes the first paragraph of the preamble by drawing the citizens’ attention to their responsibilities in government’s accountability. Just as the people, bound together by their mutual promises, are the rightful creators of government, so the people thus bound together have the authority to judge whether a government is acting according to the intention of its creator. If they judge that it is not, they and they alone have the right to alter or abolish that government and to institute a new one. In the face of tyrannical power, then, it is the business of the people to “take measures necessary for their safety, happiness, and prosperity.” As Adams puts it in Article VII of chapter I: The people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require. (Writings,299)

In sum, we can say at this point that government is just to the extent that it meets two standards: that it secures the natural rights of the governed and that it derives its powers from the consent of the governed acting as the body politic.

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Adams’ account of the role of the social contract in the constituting of a commonwealth contains the seeds of all of his major disagreements with Hobbes, and they are considerable. Adams’ first great disagreement with Hobbes was on the matter of natural rights. Hobbes had argued that each man has a natural right to everything, a shocking conclusion that he claimed to have derived ultimately from the desire for self-preservation. In contrast, Adams begins his political reckoning from the understanding that men are equally possessed of certain limited natural rights, and that those rights, properly understood, are at the heart of the natural law. In his 1780 proposal, in Article I of chapter I, he is emphatic on this point: All men are born equally free and independent, and have certain natu-

ral, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties, that of acquiring, possessing, and protecting their property; in fine, that of seeking and obtaining their safety and happiness. (Writings,298)

This notion of limited natural rights, both one’s own and others’, is at the center of Adams’ understanding of natural law, which he says elsewhere “ought to govern all men” (Works, VI,“Defence,” 114-15). Or to turn Hobbes on his head, reason should dictate or command, and the passions should obey. It is certainly true that at the forefront of Adams’ understanding of natural law is the modern concern with human rights. Moreover, Adams, like Hobbes, affirmed the legitimacy and even the duty of seeing to it that one’s own rights are secured. But Adarns did not agree with Hobbes that those rights could be reduced to self-preservation, even when that preservation is commodious. When Adams did use the language of “preservation,” he could sound very much the Hobbist, proclaiming “the law of self-preservation.” Even at such moments, however, he did not construe that law to mean that profit is the measure of right. His disagreement with Hobbes on this point is reflected in his draft constitution, where he speaks of the need for government to achieve “the preservation of the rights of every individual, his lye, liberty, property, and character.” Put differently, as a part of the natural law, the “law of selfpreservation” speaks to “all men,” commanding each one to attend to his own good by exercising his “natural, essential, and unalienable rights,” all ofwhich are limited prior to the advent of civil society9 (Writings, 298, my italics). Nor did Adams’ disagreement with Hobbes on the matter of rights end here. For on the basis of Adams’ rendering of the first law of nature,

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he could affirm a view that Hobbes renounced emphatically: since nature has “enjoined the same law [of seeing to the preservation of his own rights of life, liberty, property, and character] on his neighbor, therefore “a respect for the authority of nature” would oblige him to “respect the rights of others as much as his own” (Works,VI,“Davila,”234). This second command of nature gives the lie to Hobbes’ “selfish system,” for it means that the modern account of natural law, which places so much weight on human rights, need not thereby reduce all of our obligations toward others to calculations of self-interest. We have an obligation to respect the rights of others even when those rights do not serve our self-interest. Here, then, is the first great point of disagreement between Adams and Hobbes. Hobbes claimed that while natural rights exist, each man naturally has a right to all, and therefore there is no natural standard of justice. Hence, nature can provide no guidance for the proper conduct of human life. In sharp contrast, Adams insisted that natural rights are limited even prior to the existence of a civil society (i.e., prior to any social compact), thereby affirming that men can and should look to nature for moral guidance. Natural rights and the limits on their proper exercise are at the center of the laws of nature. For the second great difference between Adams and Hobbes we must return to Hobbes’ solution to the problem of human contention, namely, the creation of an absolute sovereign to whom all citizens in a commonwealth willingly submit. Hobbes maintained that anything short of this sovereignty is doomed to failure. Hence, the social contract itself must be understood as aiming at this end. In the social contract, men exchange ill take them out of the warring conditions of the promises that, if kept, w state of nature. They come to the contract as individuals, each of whom possesses an unlimited right to all things. The contractors can create a power capable of bringing peace to them only by “transferring” their unlimited right to an office of governing (Leviathan, 227-28). We might say that each man is sovereign over himself in the state of nature, and that what he transfers to the governing power is that self-sovereignty. As a result, the governing body itself becomes sovereign. The contractors empower government only to the extent that they “lay down” their natural right and defer to the governing power. In other words, each man’s natural right is alienable, and only when he alienates it completely is government possessed of enough power to effect peace among the contractors, who thus retain no right as a body that might justify their opposition to the sovereign government. They have become-at least if they abide by

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their promises-dutihl, not “rights-full” subjects. Thus Hobbes’ teaching on natural rights leads him to reject the very idea of limited government; the term is an oxymoron. Adams’ opposition to Hobbes’ advocacy of absolute sovereignty rests on his understanding of natural rights as they affect the formation of a commonwealth. We noted earlier that Adams distinguishes between the body of the people (the “body politic”) and government, and argues that government always remains accountable to the body politic. The authority to create government includes the authority-Adams would even say, the duty-to judge the adequacy of its performance (i.e., to judge whether a government is securing the people’s natural rights) and to act on that judgment. And if that judgment is negative, the body of the people must once again exercise its authority to create government. Hence, since all just governments derive their power from the consent of the governed, all just governments are limited governments.1° In short, the people as a body generated by their social compact are and remain sovereign, and if they exercise their sovereign responsibility seriously, they stand as a body perpetually ready to call government to task for exceeding its proper limits. It was in part this sovereign responsibility that led Adams to include in his declaration of rights Article XIX:

A frequent recurrence to the fundamental principles of the constitu-

tion, 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. (Writings, 301)

We should note here that Adams’ list of republican virtues had already appeared almost verbatim in the declaration of rights in several other state constitutions. The one virtue in the list that was unique to Adams’ version of the clause was piety. What did Adams mean by “piety” and what did he consider its connection to republican government? The text of Adams’ draft has prepared us for the notion of piety as a civic virtue. The third paragraph of the Preamble, and Articles I1 and I11 of chapter I have treated religion and its place in the constitutional order Adams is proposing. We are introduced to piety, not as a principle but as an act; the delegates to the convention conclude their Preamble by acknowledging “with grateful hearts” that the opportunity of “this people” to enter “into a social compact with each other” and to form “a new constitution of civil government” is the gift of the “great Legislator of the uni-

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verse,” acting “in the course of His providence.” The opportunity is rare and is apparently not of men’s making. It is an extraordinary gift because it includes the extraordinary conditions that make it possible for the people of Massachusetts to undertake these great acts of political founding “deliberately and peaceably, without fraud, violence, or surprise.” As they turn to chapter I, the delegates “devoutly implor[e] His direction” in the working of the constitutional order they seek to establish (Writings, 297-98). The major provisions on religion in Adams’ proposed constitution are Articles I1 and I11 of the declaration of rights. Surprisingly,Article I1 begins by stating a duty, not a right: “It is the duty of all men in society, publicly, and at stated seasons, to worship the Supreme Being.” That statement of duty is followed immediately by a statement of right: “And no subject shall be hurt, molested, or restrained, in his person, liberty or estate, for worshipping God in the manner most agreeable to the dictates of his conscience, . . . provided he does not disturb the public peace, or obstruct others in their religious worship.” The right occurs within the context of the duty; citizens should regularly and publicly worship God; how they worship him is up to them. Those who do not recognize this God, and those who recognize no God, are not singled out for punishment; but they also receive no protection. We might characterize Adams’ proposal on the place of religion in a just government as a policy of limited toleration. Still, there is a constitutional requirement of public worship, which many today would see as running squarely against the spirit of liberty. Why does Adams incorporate it into his proposal (Writings,298-99)? He gives us an answer in the opening sentence of Article 111: Good morals being necessary to the preservation of civil society; and the knowledge and belief of the being of GOD, His providential government of the world, and of a future state of rewards and punishment, being the only true foundation of morality, the legislature hath, therefore, the right, and ought to provide, at the expense of the subject, if necessary, a suitable support for the worship of God, and of the teachers of religion and morals. (Writings,298-99)

The main elements of the argument are clear: (1)the preservation of civil society requires that citizens of that society have good morals; (2) good morals in turn rest on the “knowledge and belief” in God understood as providentially governing the world and as the judge of human conduct in this life, dispensing rewards and punishment in a future state according to

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that judgment; and (3) public worship-and instruction in “religion and morals”-cultivates that knowledge and belief. The prescriptive conclusion to which this reasoning leads is the authority of the legislature to support public worship of and instruction about this God. The legislature, we recall, has as its first duty preserving the body politic; now it becomes clear that as a part of that responsibility the legislators are authorized to cultivate the virtues-including piety-that are indispensable to a just commonwealth. Adams seems to give special prominence to piety, and we now see why. Piety includes knowledge of and belief in God as the author of nature; as its author, God is the One with full authority to make and enforce the laws of nature. Put differently, this God is the ultimate ground of the principles of nature that Adams has been commending to the inhabitants of Massachusetts as the foundation of their lives together as fellow citizens. In this light piety becomes the keystone of the arch of republican virtues. A third disagreement between Adams and Hobbes concerns their respective understandings of the human material out of which a promising political community can be fashioned. We have seen that in Hobbes’ view, natural man is characterized by a kind of antisocial asociality. At the root of that disposition is the tyranny of the desire to preserve one’s self or the tyranny of the fear of one’s own violent death. By the tyrannical dominance of this fear in every man, nature has made men natural enemies, inclined to “invade and destroy each other.” But Adams insists that man is not asocial. O n the contrary, he says, men are naturally gregarious. Literally, to be gregarious is to be inclined to run in herds or flocks. But Adams understood human gregariousness to consist of various “passions, appetites, and propensities, as well as a variety of other faculties” that incline men to live together and “to be useful to each other in their social connections.” It was widely understood that nature supports its first law (preserve self) by providing men with inclinations toward their own good, and by sanctioning the first law with rewards and punishments. But too many of Adams’ fellow citizens took the first law and its supports in human nature to be the whole truth about man, at least for the purposes of political reckoning. Especially those who are advocates of liberty need to recognize that “nature intended man for society.” Human beings “in their primitive conditions, however savage,”were undoubtedly social, “and they continued to be social, not only in every stage of civilization, but in every possible situation in which they can be placed” (Works, VI, “Davila,”232-33).

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One element of that sociality-an element that supports nature’s second law (respect the rights of others as one’s own)-is “simple Benevolence, or an affection for the good of others.” Yet Adams does not conclude his reading of human nature on the optimistic note that this correction of Hobbes might lead one to expect. For benevolence is only “in some degree” a support for the second law of nature; by itself it is “not a balance for the selfish affections” for two reasons. First, the scope of benevolence in most men does not encompass society; rather, most men confine their benevolence to their families, relations, personal friends, parish, village, city, county, province” but seldom “extend it impartially to the whole community.” Second, when Adams considered the selfish passions, he found little cause for optimism. They are in themselves unlimited. Their natural tendency is to push beyond any limit they encounter and to establish themselves in the ruling position in the soul. Against reason’s dictate ofjustice, then, a strong passion can come to rule. This seems most likely to occur with the selfish passions because of the superior strength with which nature initially endows them. Hence, Adams does not deny that some men have elevated to the ruling place in their souls a desire for self-preservation that has grown insatiable in them; in such souls it rules like “a usurping, domineering, cruel tyrant’’ (Works, VI, “Davila,” 234,246). What Adams does deny is that nature enthrones in the human soul the unlimited desire to preserve one’s self so that it necessarily rules. If nature gave human sociality no more support than we have seen up to this point, Hobbes’ selfish system would certainly not face a significant challenge. Does nature “make us good members of society” not only by implanting benevolent affections in man, but also by adding to those affections for the good of others natural supports that strengthen the voice of the second law? Fortunately, nature has “not confided wholly in [man’s] laudable improvement of [the] divine gifts” of conscience and benevolence, but has “kindly added to benevolence, the desire of reputation.” Spectemur agendo (“we are seen acting”), according to Adams, expresses the great principle of activity for the good of others, wrought into the “texture and essence of the soul” as surely as are the selfish passions that support the first law of nature. In fact, so powerful is the motive force of the passion for distinction that he refers to it as the “great leading passion of the soul” ( Workr,VI,“Davila,”245). By that longing for distinction, nature has attached effective rewards and punishments to men’s unselfish obligations. We relish being noticed by others and esteemed by the public. By the same

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token, we feel an aversion to being neglected and to being the object of the public’s disapprobation.This is the cunning of nature, which has ordained it, as a constant incentive to activity and industry, that, to acquire the attention and complacency, the approbation and admiration of their fellows, men might be urged to constant exertions of beneficence. By this destination of their natures, men of all sorts, even those who have the least of reason, virtue or benevolence, are chained down to an incessant servitude to their fellow creatures; laboring without intermission to produce something which shall contribute to the comfort, convenience, pleasure, profit, or utility of some or other of the species, they are really thus constituted by their own vanity, slaves to mankind. ( Workc,VI,245)

Adams uses the word “slave”advisedly; under the “irresistible stimulus”of the passion for distinction, men are, to recall the words of one of Adams’ favorite authors, “instruments in the hands of another, in the hands of Providence, to carry on ends . . . which they themselves have not in their view.”ll By means of this “irresistible stimulus,” this “great leading passion of the soul,” nature moves men to attend to their obligations toward others, just as she moves them by means of the selfish affections to attend to their own well-being (Works, VI,“Davila,”245-46). Is Adams, then, an optimist after all? Does he think that the desire for distinction inevitably leads men to do their duties toward others? Certainly he does not think that our selfish passions lead inevitably to right actions toward ourselves. In fact he holds an analogous view of the “social” passions. We might put his understanding of the desire for distinction more accurately if we said that it potentially supports the second law of nature. It can be arranged on the side of virtue. Or it can become a wellspring of vice. And whether it becomes the one or the other, Adams says, is a matter of first concern to the advocates of just government, for this desire well regulated is “the only adequate instrument of order and subordination in society.” Even more to the point of Adams’ disagreement with Hobbes, the desire for distinction “alone commands effectual obedience to the laws, since without it neither human reason nor standing armies, would ever produce that great effect” (Works, VI,“Davila,” 234-35; cf. 241-45). Here then is the third great issue that Adams takes with Hobbes’ political science. We have seen that Hobbes took a stance in opposition to the passion for distinction or “vainglory.”He saw it as unnatural, a distor-

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tion of the desire for self-preservation. And as to its political significance, he considered it to be the source of the greatest danger to peace, which is the object of the first law of nature. Adams emphatically affirms man’s natural sociality and sees the passion for reputation as the spring of virtues and vices in our relations with our fellows. He is keenly aware of the treachery that may be plotted for the sake of gaining notice. It may, as Hobbes thought it inevitably would, be the cause of law-breaking, even of the extreme law-breaking that is aimed at overthrowing the current regime for the sake of gratifying a man’s ambition. But properly “gratified, encouraged, and arranged on the side of virtue,” it can be brought to support liberty (Works, VI,“Davila,”246). How do people regulate the passion for distinction? We have already seen that Adams is an advocate of limited government, and that he makes use of the social compact to locate one of the major limits that a free people will place on government, namely, the vigilance of the body politic. For Adams, a second, and in a well-made commonwealth, the most important, mode of regulation is the form or “frame”that a people adopts for its government. With the frame of government we come to a limiting mechanism that also regulates the passion for distinction in a manner that puts it on the side of virtue. Adams, with other major federalists, thought that the future of liberty depended on the people’s choosing “balanced government” as their agent in the task of seeing to it that the people’s rights are secure and that they can enjoy the fruits of their labor in “tranquility and safety.” Hobbes, of course, had opposed any division of power on the grounds that division would actually lessen the power, and with it the effectiveness, of government altogether. Adams and his federalist compatriots, on the other hand, advocated not only dividing power, but dividing it in such a way as to have the several divisions “balance”or “check”one another. O n this point Adams was one with Publius when he wrote in Federalist #51: “ambition must be made to counteract ambition.”There is perhaps no better statement of what Adams meant by “regulating” the passion for distinction-on the one hand, structure offices of government so that ambitious men will seek them as a venue in which to distinguish themselves before the public. On the other hand, set each office in a matrix of offices that will necessarily butt heads because each one possesses a part of the authority needed to undertake the projects that will attract that public notice. Unassisted, nature does not cause men to pursue justice for both themselves and others. But nature provides the materials that can be made to “compel” men to be agents of justice without requiring that they

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become abject and servile subjects of a tyrant. Balanced government properly understood is the key to that “compelling.”12 If John Adams could be said to have had one political aspiration above all others, it was to teach his fellow countrymen the truth about balanced government and its fruits for the just life of a free human being. He was one of a very few Founders who grounded their understanding of politics on a thoroughgoing analysis of nature as it pertains to man’s conduct. A part of that truth was the role of consent in the origin of a just political order. So he understood that his vision of the best form of government could legitimately hold sway in America only if the people voluntarily embraced it as the truth. His task, in other words, was to bring together the truth about politics and the will of the American body politic. This great project of political education fueled his critique of Hobbes, who used the language of the social compact to vindicate a life of slavish subjection to tyrannical rule. Both Hobbes and Adams were moderns in their focus on human rights. But that similarity should not obscure for us the deep differences that make Adams a friend and Hobbes an enemy of our liberty.

NOTES I wish to thank David Livingstone for conversations that helped clarify key dif-

ferences between Adams and Hobbes, and for his assistance with endnotes on Hobbes; Laurence Nee for his astute comments on a draft of the essay; and Eleanor Paynter for giving the essay the benefit of her critical eye for clarity and style. 1. Within the social contract tradition, its proponents have chosen different terms to designate the promise that brings a commonwealth into existence. Hobbes used the term “covenant;”which he understood to be a particular kind of contract. Adams used the term “compact.” I will argue that Adams and Hobbes disagreed on what occurs in that promise. I do not think, however, that the disagreement is reflected in their choice of terms to designate the event. Nevertheless, to leave that issue open, I have followed their lead, using the term preferred by the thinker I am discussing at that point in the chapter. 2. C. Bradley Thompson, John A d a m and the Spirit ofliberty (Lawrence: University Press of Kansas, 1998), 150-52. For one origin of the claim that Locke, following Hobbes, grounded his account of natural law on the desire for selfpreservation, see Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 202-51, especially the turn in Strauss’s argument beginning at page 220. For a complete examination of this question, of course, one would need to examine both Hobbes and Locke in relation to Adams. Available space

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limits me to one of the two. I have chosen to focus on Hobbes because most scholars who embrace the notion of a “Hobbesian-Lockean” teaching on politics do so by assimilating Locke to Hobbes, arguing that Hobbes’ teachings were shared by Locke, though perhaps dressed in sheep’s clothing by the judicious Locke. Thompson merely assumes this assimilation of Locke to Hobbes, as evidenced by the fact that he cites only Hobbes and never Locke in his presentation of “their” teaching on natural law. If Adams accepted a modified HobbesianLockean teaching on natural law, and if Locke was in fact a Hobbist, then Adams was a “modified Hobbist.” Hence the focus of this chapter. 3. Quotations from John Adams’ writings are from one of two sources: The Works ofJohn Adams, ed. Charles Francis Adams (Boston: Little and Brown, 1851), 10 volumes; or The Revolutionary Writings ofJohn Adams, ed. C. Bradley Thompson (Indianapolis: Liberty Fund, 2000). Citations of these sources will be made in parentheses within the text, the first as Works, followed by the relevant volume, a partial title of the particular text, and the page number(s); the second as Writings, and the page number(s). Spelling has been modernized. On the “selfish system,” see Works,v1,“Dada,” 245; Adams is there relying on Adam Smith, who apparently coined the phrase in his own critique of Hobbes. For a discussion of Adams’ use of Hobbes in Adams’ major published works, see John Paynter, “The Rhetorical Design of John Adams’ Defence of the Constitutions o f . . . America,” Review ofpolitics 58, no. 3 (Summer 1996): 533-60. 4. A large part of Hobbes’ critique of the traditional natural law teaching was also directed against the “old moral philosophers,” who had developed the philosophic antecedents of the natural law tradition. His principal antagonist among those philosophers was Aristotle and his doctrine of “separated essences.” See Leviathan, chapters 1: “Of Sense” and 46: “Of Darkness from Vain Philosophy, and Fabulous Traditions,” especially 689-91. AU references to Hobbes’ writings will be either to The Citizen, ed. Bernard Gert (Indianapolis: Hackett Publishing, 1991) or to Leviathan, ed. C. B. Macpherson (Harmondsworth, England: Penguin Books, 1968). Citations of these works will be made in parentheses within the text. Spelling has been modernized. 5. The leading presentation of the traditional understanding of natural law in Hobbes’ England was Book One of Richard Hooker’s Of the Laws OfEcclesiastical Polify, originally published in 1593. Hooker offered this formulation of the place of self-preservation in the hierarchy of human goods: “True it is that the kingdom of God must be the first thing in our purposes and desires. But inasmuch as to live virtuously it is impossible except we live, therefore the first impediment, which naturally we endeavor to remove, is penury and want of things without which we cannot live.” In Hooker’s rendering of natural law, the concern with self-preservation that moves men with the force of necessity extends only to the means “to live” and not to the “commodious living” of Hobbes. Hooker was fully aware that “all men naturally [seek] such a life as has in it joy, comfort, delight, and pleasure.” Yet the fact that all men desire something like commodious

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preservation does not make of that desire a right to the thing desired, nor a right to any means that one chooses to employ in pursuit of that thing. Once the “means whereon to live” are secured, “the principal actions of [men’s] lives” are to be devoted to that “higher perfection” in which we seek to imitate God. In sum, as “the things of greatest necessity are always first provided for, so things of greatest dignity are most accounted of by all such as judge rightly.” Hooker’s account of the “higher perfection”rests on his distinction between the goods made known to us by our senses and those goods knowable only by reason. Quotations are from Book I, chapter 9 of Hooker’s Of the Laws of Eccfesiastical Polip, Books 1 and 8, ed. Arthur Stephen McGrade (New York: Cambridge University Press, 1989). 6. In the contractarian tradition, it was Rousseau, not Hobbes, who took seriously the claim that man is by nature asocial. See Rousseau’s critique of Hobbes in the discourse “On the Origin and Foundations of Inequality Among Men,” the Exordium, paragraph 5 (pages 102-3); part I, paragraphs 6 (107-8) and 35-38 (128-33); and part 11, paragraphs 36-37 (162-64) and 54-56 (176-80). Page numbers are from the Roger Masters edition of the discourse in his Jean-Jacques Rousseau, The First and Second Discourses (New York: St. Martin’s Press, 1964). 7. Hobbes insisted that a man cannot transfer a right unless he has some prospect of reaping a good for himself as a result. Since he can never expect to gain by his own death, he can never be understood to transfer to another by covenant a right to take his life (Leviathan,268-72). Of course, this way of thinking about the “inalienability” of some rights comes to absolutely nothing but might, of which a single citizen has very little. But more important for the comparison with Adams, this “right” that Hobbes says a subject retains when he enters a commonwealth remains a completely individual matter. In contrast, Adams’ account of the social compact concludes that inalienable rights are the ground for the right of the “body politic” to hold the government accountable. 8. At the 1780 Massachusetts constitutional convention, delegates elected a drafting committee, which included John Adams. The committee then requested of Adams that he prepare for them a draft of a constitution that they might consider recommending to the assembly of delegates. It is Adams’ proposal to the committee that I am using here as his major statement on the social contract. For an accurate and readily available copy of Adams’ draft, see Writings, 295-322. 9. We can consider property as an example of a fimited natural right. Adams followed Locke in his understanding of this natural right. As we have seen, in Hobbes’ thought, talk of unlimited rights meant no property right by nature; if we all have a natural right to everything, then no one of us has a legitimate claim to a part of this “everything” as belonging excfusivefy to us. Locke based our exclusive ownership of something on the labor we have invested in it, arguing that the value of a thing is determined by the labor invested in it by its producer, that labor is the work of our bodies, and that our bodies are the one naturally private thing. Hence, our laboring on something removes that thing from the common possession and makes of it a thing to which we now have an exclusive right.

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Locke’s treatment of the body here is in direct opposition to Hobbes’ claim that each of us has a natural right to everyone else’s body. 10. For Adams, the requirement that all just governments must be grounded on consent and thereby limited radically altered the traditional typology of regimes. For a systematic treatment of that effect of the contractarian principles ofjustice, see John Paynter, “John Adams on the Principles of a Political Science,” Political Science Reviewer 6 (Fall 1976): 41-44. 11. The quotation is from the first of fifteen sermons by the English divine Joseph Butler that were appended to many editions of his Analogy ofReiigion. Adams read Butler and copied parts of Butler’s works into his commonplace book shortly after graduating from Harvard. 12. In most of his published works, in much of his extensive correspondence, and surely in many of his conversations, Adams made his case for “the triple equipoise,” which was his favorite term for the perfect balance in government. His great disappointment with both the 1780 Massachusetts Constitution and the U.S. Constitution was their failure to give the executive an absolute veto over legislation proposed by the legislature. In his judgment, the best of the state constitutions had employed all of the indispensable elements of balance that limit the executive; none of them had given the executive what he most needed in order to check the legislature. Adams worried that this single failure in American constitution-making could very well lead to the death of liberty in America.

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Benjamin Franklin and the Theory of Social Compact Steven Forde

@enjamin Franklin’s intellectual biography is different in significant respects from those of his fellow Founders, as was his role in the American struggle for independence and the subsequent framing of the Constitution. These differences in general led Franklin to be more pragmatic and less theoretical in his thinking about the issues of independence and Constitution-writing, less given in particular to talk of the social compact and its theoretical implications. Franklin almost never used the phrase “social compact,”despite its prevalence in the discourse of his age. H e appealed to “rights” more frequently, but these were almost always positive rights, the rights of Englishmen for example. In this he did not differ from other American writers in the earlier stages of the contest with Britain that eventually became a struggle for independence. Franklin, who was older by a generation than most of his fellow Founders, was more steeped in the earlier idiom. His many years in London, representing Pennsylvania and other colonies, reinforced this tendency. When defending American rights before the British Parliament and Ministries, it was doubtless more prudent to stand on the rights of Englishmen rather than natural rights and de novo social compacts. Franklin would have had different reasons for muting such appeals in Paris, where he had the delicate task of maintaining the French monarchy’s support for the American Revolution then in progress. But Franklin eschewed talk of natural rights and the social compact even more than prudence required. H e wrote many anonymous pieces for the London press during his years there, where his hand was largely free. Some of these are quite scathing toward British policy in America, but 255

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they seldom or never appeal to natural rights and the fundamental compact. Such ideas were certainly current in Britain at the time; indeed, David Hume thought them the stock-in-trade of the Whig party.l Yet Franklin clearly shied away from them. His reticence stems not only from rhetorical compulsion, but personal choice rooted in his intellectual development. It is not that Franklin never used the concept or the language of social compact; and to say that he did not find the social compact intellectually congenial is by no means to say that his thinking was not modern in the decisive respects. Franklin’s views on religion, on liberty and equality, on the fundamental purposes of society, and on the new natural science were thoroughly modern. He was a devoted disciple of John Locke, though his is the Locke of the Essay Concerning Human Understanding more than the Second Treatise of Gowernment. In this particular, Franklin was far from unique.

FRANKLIN’S INTELLECTUAL DEVELOPMENT One reason for these intellectual proclivities is that the mature Franklin avoided philosophical abstraction, or “metaphysical reasoning,” as a matter of principle. Yet this is not the way he started out. His Autobiography shows us a young Franklin who was fascinated, if not obsessed, with philosophical abstraction. At the earliest age, he was reading books on “polemic Divinity” found in his father’s library.2The pamphlets against deism, he tells us, had the effect of making him a “thorough Deist” by the time he was fifteen (1359). Though he rejected their teaching, Franklin’s natural inclination favored the abstract and disputatious style of these writings. At about the same time, he picked up Xenophon’s MemorabiZia and became enchanted with Socrates’ style of questioning (1321). Putting these things together, Franklin began interrogating the good people of Boston on their religious beliefs. Before long, he came to be looked upon with “Horror” in his native city (1325)-one reason, he says, for his early departure from Boston. Later, in Philadelphia and in London, he won friends over to his deist creed, friends who, he tells us, later wronged him without compunction. This experience convinced Franklin that however true his doctrine had seemed, it “was not very usell” (1359). This, and the experience of writing two essays maintaining with equal facility opposite positions on free will,virtue, and divinity, finally made him “disgusted”at such “meta-

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physical reasonings.” From that moment on, he regarded such reasoning with the greatest suspicion (1016). It seems likely though that Franklin never said so explicitly, that philosophical abstractions such as natural rights and the social compact fell under this suspicion. The long chains of reasoning they rely on, deriving from certain postulates about nature, human nature, and indeed divinity, are precisely the kind of thought Franklin found too speculative to rely on. This goes a long way toward explaining his reticence on compact and natural rights throughout his career. Yet if he was philosophically skeptical, Franklin was not a man of moral uncertainty. H e had no doubt of the justice of the American cause against Britain, for example, and did not hesitate to pronounce on countless other moral issues. He certainly did not think that, in abandoning “metaphysical”moral philosophy, he had forsaken morality. H e was simply forced to put morality on a different footing. Lest we be left in a dangerous suspense, Franklin’s Autobiography identifies the basis he found for morality in the very passage that relates his abandonment of its “metaphysical”grounding. If deist principles led his friends to take advantage of him without a thought, this in itself, Franklin decided, was enough to invalidate those principles. But this implies that some more direct insight into right and wrong can and must ground our morality. He settled on the conviction that “Truth, Sincerity &3 Integrity in Dealings between Man &Man were of the utmost importance to the Felicity of Life,” (1359) and that these principles were the core of morality. Abstract or metaphysical reasoning had betrayed Franklin and his friends, but this principle never could: it was rooted in direct experience of human happiness and its preconditions. This, rather than any philosophical doctrine, became the touchstone of morality for Franklin. The morality he derived from it parallels that of his more philosophically inclined contemporaries, but Franklin declines as a matter of principle to put it on so abstract a basis as the rights of man or a social compact. One of the vices to which reliance on philosophy can lead is dogmatism and intellectual contentiousness. This is a discovery that Franklin made during the same period. His own fascination with metaphysical subtlety, together with natural inclination, delivered him to this very vice. The effect it had on his relations with his fellow Bostonians however was a lesson to him, reinforced by others in Philadelphia. He learned that a dogmatic and imperious manner is not only counterproductive-it creates resistance rather than persuasion-but is destructive as well of smooth and

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pleasant social relations. The very principle of “Truth, Sincerity U Integrity” among men compelled Franklin to curb his contentiousness. Though it required some “violence to natural Inclination” (1393), it led to both more effective and more enjoyable relations with his fellows. Under the rubric of the virtue of “humility,”this is one of the principal lessons of the Autobiography, paralleling his assault on ”metaphysics”on intellectual grounds. Abstract reasoning is both philosophically unreliable and too inclined to counterproductive polemicism. The new, more diplomatic manner Franklin developed as a result of this insight served him well on his missions to London as colonial representative. But it, too, would have made Franklin reluctant to use the rhetoric of compact and rights. One notorious feature of the philosophy of natural rights is its rigid or dogmatic character. Its moral world is black and white. The assertion of a natural right is intended to be absolute and unambiguous, to “trump”other claims such as social utility. It typically has the effect, and is intended to have the effect, of blocking further negotiation or compr~mise.~ Such an assertion might be useful in a revolutionary situation, when compromise has by definition been ruled out. In ordinary politics and diplomacy, however, it is likely to be as counterproductive as an affirmative and dogmatic style of conversation and might be rejected on the same grounds.

COMPACT AND EMPIRE During his years as colonial agent in London (all but two of the years between 1757 and 1775), Franklin was deeply involved in the polemics that led eventually to the American Revolution. In thinking about his writings during this period, we should always bear in mind that his official charge was not to bring about a separation from England-quite the contrary. Up to the end (he departed in 1775), Franklin bent every effort toward reconciliation, and recourse to the rhetoric of natural right and original compact may have been inflammatory enough to hasten what Franklin was trying to prevent. This is not to say that he was willing to compromise everything. When it was a matter of fundamental principle, he did insist on the Americans’ rights. But these were always, or nearly always, presented as positive rights, the rights of Englishmen. A case in point is the turmoil surrounding the Stamp Act of 1765. It was his role in championing the American cause during these controver-

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sies that led Franklin to be regarded as the preeminent spokesman for the colonial cause in London. H e had opposed the act, and his testimony in Parliament in 1766 was instrumental in its speedy repeal. The issue that was at stake, the issue that became the proximate cause of the American Revolution, was taxation without representation. Franklin’s speech and writing on this subject reverted to rights frequently,but they were not natural rights, or not unambiguously so. The Stamp Act was illegitimate because it violated the right of the colonial legislatures to vote their own taxes, to contribute to the common expenses of the empire voluntarily. This right, he argued in an anonymous newspaper entry at the end of 1765, is derived from the Magna Carta and the Petition of Right, which together are the “common constitution” of Englishmen and Americans (564). H e is silent about rights deriving from any more primitive compact. He is a bit bolder in another anonymous piece published shortly thereafter: the Stamp Act represents rule by force contrary to the “Laws of Nature,” and such a rule tramples on “the common Rights of Mankind” (578). The Americans “will not tamely give up what they call their natural, their constitutional Rights,” he intones. This appeal to natural right is one of the strongest anywhere in Franklin, but it is far from absolute. First, it hedges that these are only what the Americans “call”their natural rights. Then, they are commingled with constitutional rights. And it is the latter that receive the emphasis as Franklin elaborates that the Americans are so steadfast in their defense of rights because they have been steeped in “English principles” (578). Franklin himself is willing on rare occasions to ‘‘call’’certain rights natural, but he would rather define, and defend, them as constitutional rights. For all his reluctance to advert to natural rights, Franklin’s general view of the rights of the colonies does rest on a kind of compact doctrine. The Stamp Act and similar measures were encroachments on colonial privilege because they violated the compacts that had established each colony. In other words, Franklin’s constitutionalism was contractarian, a position especially easy to maintain in the case of the colonies, since they had originated in written charters granted by the crown. Along with many other Americans, Franklin held that the colonies were subject to the king but not to the British Parliament. This was not simply because the colonies were not represented in Parliament, but because they had been created separately by these charters. The charters created new nations that were part of the king’s dominions, independent from and coequal with his British dominions. The reason they were not represented in Parliament

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was precisely their separate and equal status. They had representative assemblies of their own, and these alone had the power, by charter, to levy taxes on the colonists. Franklin takes this train of thought in a direction very reminiscent of the contractarianismof Locke and Sidney in marginal comments he scribbled in a pamphlet of 1769.4 Franklin rebuffs the pamphleteer’s claim that the colonial charters were not much different from charters granted by the king for commercial enterprises. Rather, he argues, they were compacts erecting wholly new societies-social compacts, in effect. It would not be correct to say these compacts created societies de novo, since the parties were an existing king and some of his subjects who were removing to the New World. But Franklin does treat these as founding compacts in the sense that they settled the relationship between people and sovereign in perpetuity: both parties would have to consent to any alterati~n.~ When the pamphleteer attacks the “idle metaphysical dreams” of Locke and Sidney, Franklin rises to the defense of these “great men,” even to the vindication of some of the principal tenets of compact doctrine. When the author denies that men were ever in a precivil state of independence, Franklin instances the American Indians to the contrary. These peoples exist as peoples (thus taking them out of the pure state of nature, we note), but without political institutions such as courts and officers of justice. Their leaders lead by persuasion, not force.6 Franklin defends vociferously the classic compact’s supposition of natural equality. The pamphleteer asserts natural inequality as the basis of government,but Franklin notes in the margin that equals may compact with equals to create a government limited by that compact. Though the Americans were compacting with an existing monarch, it was a separate society, and in effect a separate monarchy, in the New World. The consequence is that, in order to understand the position of the colonies vis-a-vis the mother country, it was more important to understand the colonial charters than it was the doctrine of natural rights. According to Franklin, the charters vouchsafed to the colonists the whole inheritance of English liberty, incorporating the Magna Carta and the Petition of Right explicitly or by inference. Thus the colonists had all the rights of subjects at home. But the king compacted to limit his prerogative still further in the American plantations. Religious liberty of course was the most important example for New England, but there were others. The colonists were given more advantages than native British subjects, Franklin says in these marginalia, in order to induce them to undergo the

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hardship of creating new colonies. And all the charters exempted them as a matter of course from any subordination to the home Parliament. It was precisely to secure “Freedom from tyrannical Acts of Parliament, that they went to a Country where neither the Power of Parliament nor of Prerogative had any Existence, and where the King, on the Condition that they would continue to own him as their Sovereign,was contented to limit the Pretensions of his Prerogative by solemn Charters.” It is not even proper to call the colonists “British subjects,” but American subjects of the same king.7 And the Parliament in London had no more right to tax the Americans than their legislatures had to tax Londoners. This theory of separate and coequal realms was always Franklin’s view of the empire-espoused by him as late as 1774 (711-14)-and his recipe for reconciliation of London and the colonies. That reconciliation, on the basis of respect for American rights, was Franklin’s real aim in his writing and thinking. The comments just reviewed show that he was familiar with the doctrine of social compact and natural right and could make use of them for this cause; but when he did, they seemed inexorably to become constitutionalism and constitutional right. Rather than the classic compact doctrine, Franklin’s thinking revolved around a certain vision of the public good of the colonies and the common good of the empire as a whole. The concept of a social compact could illuminate or bolster that vision for certain purposes, but compact theory is not determinative for him. Thus, his view of the colonial charters as founding compacts is sincere, but that is because they are historical and positive documents, not “original compacts” in the speculative, Lockean sense. The further reaches of compact doctrine, a precivil state or natural independence, are mentioned, but given little weight. And all these thoughts, we must recall, are found in the margins of a pamphlet, a place certainly not marked for public display. FRANKLIN’S POLITICAL PRINCIPLES But if the social compact played a distinctly secondary role in Franklin’s thinking, particularly his published thinking, what played the primary role, and how did it relate to the compact terminology he occasionally used? Franklin’s fundamental political convictions, whatever their source, tallied remarkably well with those of his contemporarieswho derived their convictions from compact doctrine. He thought an English-style constitution, guaranteeing the traditional English rights and liberties, to be an

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admirable political arrangement, not only on the basis of English chauvinism or the positivism of English law, but because it served certain goals that all political systems should serve. But what were those goals, and how were they derived? With regard to general moral principle, we have already noted Franklin’s core conviction, that “Truth,Sincerity @Integrity in Dealings between Man & Man” are the defining goals. Though this is more a personal and less a political principle, it is indicative of Franklin’s way of thinking as a whole. He adopted this principle after finding abstract speculation dangerously unreliable. The principle itself he regarded as infallible, because it was based not on “metaphysics”but on experience. And the experience in question is experience of what leads to human happiness or the reverse. One of Franklin’s earliest moral insights, he tells us in the Autobiography, was that the commands of morality are ultimately grounded only in happiness. So sure was Franklin of this insight that he applied it to revelation as well as rational ethics. As he explains it: Revelation had indeed no weight with me as such; but I entertain’d an Opinion, that tho’ certain Actions might not be bad because they were forbidden by it, or good because it commanded them; yet probably those Actions might be forbidden because they were bad for us, or commanded because they were beneficial to us, in their own Natures, all the Circumstances of things considered. (1359-60)

Though Franklin uses this logic to repudiate “philosophical” ethics, the train of thought is in fact very close to that employed by some of the leading philosophical lights of his age. Locke, in his Essay Concerning Human Understanding,explicitly ties morality to human happiness. This work actually begins with an attack on speculative philosophy, as incapable of settling the questions it raises.* Its final moral teaching rests on a logic that could without distortion be described using Franklin’s words above (cf. Essay, 1.3.6, 13; 11.21.47-62). That is, Locke’s moral philosophy as a whole proceeds from a certain view of human happiness and its preconditions, a view derived solely from reflection on experience (Locke’s “empiricism” entails that this is the only source of knowledge in any case: Essay 11.1). This empirical view of happiness is then used to sift morality, and even revelation, validating some principles and rejecting others.’ Locke uses the concept of social compact and natural rights in his political thought to guarantee certain preconditions of human happiness. 0 t h ers, while endorsing more or less the same view of happiness and the morality that derives &om happiness, thought the compact and rights a needless

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device. David Hume was one of these. Franklin, who was personally acquainted with Hume from his years in London and had a small correspondence with him, might in this respect be called a follower of his. Hume, famously, attacked the notion of an original compact as irrelevant to justice and government as we know them. Compact and consent may have been the foundation of the first and most primitive political arrangements, but virtually every existing political order has another origin, one that will generally not bear scrutiny.’O But the sordid origins of most governments are as irrelevant as any primitive compact, for our moral obligations to them are rooted elsewhere. For Hume, political obligation is grounded in the simple fact that governments serve certain human goods. Moral sentiments of a kind bind us to the rules of justice, through a second-order obligation derived from the empirical observation that such rules are necessary to the functioning of society.” Our obligation to government is tied to the fact that it serves society well. The standard by which we are to judge individual governments then is their fitness to advance the appropriate social and human ends-let us call them human happiness-rather than their origin in compact or consent. In a peculiar sense, Hume’s theory is teleological, taking its bearings from the ends, rather than the origins, of society” Franklin is even less “metaphysicalnor abstract than Hume; he does not speak of moral sentiments or indeed of any root of moral or political obligation as such. But his moral and political outlook is “teleological” in just the same sense. In matters of personal morality, his rule that “Truth, Sincerity & Integrity in Dealings between Man & Man” are to guide our actions represents a vision of the goal or purposes of social interaction, from which Franklin derives a moral code. His condemnation of contentiousness in conversation is explained and justified by the claim that the “chief Ends of Conversation are to inform, or to be informed, to please or to persuade,” which purposes are defeated by an overbearing affirmative manner (1322).These purposes govern our understanding of proper social intercourse, and the relevant virtues and vices derive their force from their service or disservice to this goal. The same line of thought leads Franklin to suggest, wryly, that it may be possible to have too much virtue; “that a perfect Character might be attended with the Inconvenience of being envied and hated; and that a benevolent Man should d o w a few Faults in himself, to keep his Friends in Countenance” (1390). However seriously this remark may be intended, it illustrates an important point: If the purposes of social interaction govern the rules of virtue, not vice versa, virtue itself is subordinate to and potentially limited by those purposes.

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To be sure, these are principles of social morality and personal behavior rather than political philosophy, but they have political bearing. They reveal a distinctly sociable view of mankind, or at least a view with distinctly sociable elements. That is, man can find a genuine pleasure in the company of his fellows, and even in a life of benevolence toward them if their relations are put on the proper footing. It seems indeed that man’s happiness can only be found in such a setting. This general outlook Franklin shared with a number of his fellow founders, but it puts him outside at least the most individualist strains of the social compact tradition. Franklin once wrote to a correspondent that Hobbes’ critics may not be correct in seeing the state of nature as a state of love rather than a state of war, but that “the Truth perhaps lies between both Extreams” (425). H e finds man sociable, but with unsociable elements to be overcome; thus the need for virtues. His thinking on politics reflects a parallel mixture of trust and distrust in human nature. One of Franklin’s most systematic expressions of political principle is found in a proposal he penned for an English school in Philadelphia in 1749. The proposal includes a fairly detailed outline of the school’s curriculum, a curriculum dedicated in part to politics and the fundamentals of government. The express purpose of this political education is to produce citizens who understand liberty and are willing to defend it. Franklin’s belief is obviously that human beings are capable of free government, but that education is required to prepare them for it and vigilance is required to maintain it. In his curriculum, history is almost exclusively the subject that Franklin uses to teach the appropriate lessons to his students. The lesson is described, interestingly, in social compact terminology. This is what students are to learn: History w i l l also give Occasion to expatiate on the Advantage of Civil Orders and Constitutions, how Men and their Properties are protected by joining in Societies and establishing Government; their Industry encouraged and rewarded, Arts invented, and Life made more comfortable: The Advantages of Liberty, Mischiefs of Licentiousness, Benefits arising from good Laws and a due Execution of Justice, €9’~. (337)

This is a virtual synopsis of classic compact theory, including an implicit reference to the compact itself. It is clear that Franklin intends students to learn by and large what Locke would have them learn, certainly with regard to the goods of political life and vigilance for liberty. Yet they will obviously not study the “original compact” per se, since that is not a

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possible subject of “History” (cf. Locke, Second Treatise, $101). In fact, Franklin’s pupils never study the philosophical derivation of rights to life, liberty, or property. Franklin does expose his pupils to Grotius and Pufendorf, who both speak of original compacts; but what students are to learn from these philosophers is logic, especially moral logic (338). Franklin’s curriculum nowhere assigns social compact theory as a subject, nor any of the classic compact theorists as reading.13The slight allusion to the original compact in the quote above-that men join in societies and establish governments-implies little more than the artificial nature of society and government. This is an important point to be sure, though less so perhaps if one regards man as partly sociable by nature. There are two reasons for Franklin’s near-exclusive use of history to teach politics. The first is pedagogical: history teaches more enjoyably and memorably, it impresses pupils more vividly with lessons such as “the Beauty and Usefulness of Virtue” (336). Franklin’s goal being to teach citizens to prize liberty and be willing to defend it, they must be induced to take these lessons to heart, to internalize them. He approvingly quotes Milton to the effect that political education should make men better than the “poor, shaken, uncertain Reeds” that have sometimes been seen in the English struggles for liberty (337n). As an educational tool, history is simply better than abstraction at furing the advantages of liberty in students’ minds and firming their resolve to defend it. The second reason for preferring history to compact theory is a deeper one, connected with Franklin’s affinity to Hume. As with Hume, it is the purposes of society, the goods it serves, that provide the focal point of Franklin’s thinking on all political matters. And these are established empirically, not by such abstractions as rights and compacts, as are the best forms of government to advance them. History is the most appropriate study because it is simply the accumulated experience of mankind, from which pupils may draw appropriate lessons. Hume, we recall, devoted much of his intellectual energy to history, in part because of its capacity to illuminate the issues of political theory.14 As recommended by Franklin, history conveys the salutary political lessons of compact theory-the importance of protecting life and property, of encouraging industry and the advance of science, as Franklin describes them above-while obviating such needless abstractions as the “original compact.” History rather than philosophical abstraction will also teach students the advantages of certain forms of government (liberty, good laws, and administration). Franklin agrees with Locke and Hume on the

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practical advantages of a properly ordered society, but agrees more with Hume perhaps on the way to discover and to teach them. Franklin’s relatively few contributions to the proceedings of the Constitutional Convention of 1787 reflect this pragmatic rather than theoretical approach to the problems of politics. Here was an opportunity to canvass the broad themes of political philosophy if ever there was o n e - a n d many at the convention took advantage of it-but Franklin abstains. His recommendations are laced instead with the lessons of contemporary and historical experience. He was concerned with issues like salaries for public officials (they are dangerous, as the experience of England demonstrates), and the allotment of representatives among the states (it should be done by population-though Franklin was instrumental in fashioning the Great Compromise on the issue). His famous call to prayer in a deadlocked convention is introduced with the claim that though the convention has cast far and wide for ideas, looking into ancient history and the like, it has failed to find resolution in any of them (1138). The call for prayer was scarcely acknowledged by the assembled delegates, as far as we can tell. In fact, every one of his proposals (with the exception of the Great Compromise) was rejected by the convention. Judging from the views he expressed that summer, he should have found the antifederalist camp more congenial than the federalist. Yet, at the convention’s conclusion, when the final document was placed before the group, Franklin made a plea for all to endorse it despite the flaws they found in it, or thought they found in it. Unanimity, he explained, would enhance the prospects for eventual ratification. But he also urged the delegates to consider that human reason is fallible in such matters, that the form of the government is less important than how it is administered and how the people received it (114e41).This is as perfect an example as may be found of Franklin’s turn of mind. It seemed to him that the proposed Constitution had important flaws, but in matters so dependent on intellectual speculation, he denied that anyone could be sure, until experience had intervened. It might be doubted that many of the controversies of detail in the document were of such moment, since even in government form is less important than the goods it is designed to serve. In making this argument, Franklin may well have had in mind a favorite couplet of Alexander Pope, “Forforms ofgovernment letfools contest; / Whate’eris best administer’d is best.”15Franklin’s atheoretical inclination undoubtedly carries him too far in this instance, but that fact only confirms the strength of the inclination.

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In general, the political views Franklin expressed in the Constitutional Convention were more egalitarian than those of many of his colleagues. Indeed, one political-philosophical principle that Franklin firmly adhered to throughout his life, a principle he shares with classic compact theory, is the belief in human equality. From his earliest compositions for his brother’s Boston newspaper to his participation in the convention of 1787, Franklin displayed a firm belief in the moral equality of men and disdain for pretensions to superiority. All the American Founders of course shared this general belief, but perhaps his own humble beginnings caused Franklin to take the principle hrther than his colleagues.The sentiments he expressed in the Constitutional Convention were more egalitarian than those of many of the delegates, and the proposals he supported tended more to direct democracy. In addition to supporting unrestricted suffrage and opposing property qualifications for officex6(proposals that were accepted by the convention), he supported proposals for a multiple executive and (apparently) a single legislative house.” When these proposals failed, however, Franklin accepted the fact with good humor. One of the most striking expressions of Franklin’s egalitarianism is a bulletin he published in Paris during the War of Independence, while he was the official emissary to the French court. Addressed to would-be emigrants, the pamphlet is titled “Information to Those Who Would Remove to America’’ and contains among other things a remarkably venomous assessment of “gentlemen.” With an eye perhaps to his own heritage, he informs the French that Americans would rather learn that their ancestors were “Smiths, Carpenters, Turners, Weavers, Tanners, or even Shoemakers, & consequently that they were useful Members of Society; than . . .that they were Gentlemen, doing nothing of Value, but living idly on the Labour of others, merefruges consumere nati, and otherwise good for nothing” (977). Americans, he says, hold that “God Almighty is himself a Mechanic ...respected more for the Variety, Ingenuity and Utility of his Handiworks, than for the Antiquity of his Family” (977). The acerbity of these words is remarkable, particularly given the circles in which Franklin was then moving in Paris, but similar sentiments flowed with some regularity from the pen of the appropriately named Poor Richard. “A Plowman on his Legs is higher than a Gentleman on his Knees,” he wrote at one point, in effect exhorting Americans to stand fast in their disdain for pretensions of social rank and privilege (1238). Franklin’s disdain for men of privilege proceeds not only from his strong egalitarian bent, but his utilitarian view of social and political

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morality. “Gentlemen” are inferior to tradesmen because the latter alone engage in the (Godlike!) task of contributing useful works to society,while gentlemen, apparently, are simple parasites. There is no hint of sympathy for the notion that an aristocracy might contribute a taste for beauty, an elegant tone, or even statesmanlike prudence, to a society. Again, this outlook is paradoxical to say the least, given the obvious pleasure with which Franklin moved in high Parisian society and his own great vogue there. Franklin’s strong preference for the egalitarianism of America, on the grounds of social utility, apparently gets the better of his tact in this instance. Even more radical is a treatment of property rights we find in a letter he wrote, also during his years in Paris. All property beyond the subsistence level, Franklin suggests, is just a “Creature of public Convention” (1082). This being the case, the public has the right to control inheritances, as well as regulate the uses and place a limit on accumulations of property. Man has subsistence property by “natural Right” (a very rare usage for Franklin); “But all Property superfluous to such purposes is the Property of the Publick, who, by their Laws, have created it” (1082). This was not an aberration or a mere speculative reverie on Franklin’s part. As a member of a Pennsylvania convention to revise the state’s charters in 1776, he inserted a proviso (rejected by the convention) that the state has a right to discourage large concentrations of property, as counter to the happiness of mankind (1489). Although this is far from Locke’s doctrine of property, it does rest on a concept of the social compact. All social compact doctrines postulate that society and its institutions are conventional or artificial; Franklin in these instances applies that postulate to property (as contractarians other than Locke had also done). He draws from the compact not an indefeasible individual right to property, but a higher social right to regulate it, for the general good. We now recognize in this Franklin’s typical way of using compact language. H e presumes a social compact, but interprets it entirely in the light of post hoc considerations of social utility.’* This way of thinking draws on experience rather than a priori reasoning. Though using the intellectual tool of the social compact, Franklin actually rests his normative conclusions on public utility. In the matter of property, his view of public utility was heavily colored by his experience of the contrast between the egalitarian society of America and the system of inherited inequality in the Old World. In a letter of 1772, he describes the wretchedness he observed among the common people of Ireland and Scotland. He concludes:

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Had I never been in the American Colonies,but was to form my judgment of Civil Society by what I have lately seen, I should never advise a Nation of Savages to admit of Civilisation: For I assure you, that in the Possession and Enjoyment of the various Comforts of Life, compar’d to these People every Indian is a Gentleman: And the Effect of this kind of Civil Society seems only to.be, the depressing Multitudes below the Savage State that a few may be rais’d above it. (874) Though the social compact once again lurks in the background, what is decisive here is Franklin’s weighing of the advantages of the civil state against the savage. The balance is struck in terms of utility or happiness, and excesses of social and economic inequality are so baleful as to be capable of tipping the scales against civilization itself.The prosperity or happiness of a few is not enough to justify it. If this balance can condemn society as a whole, it is certainly capable of placing the institution of property under regulation. Thus Franklin’s use of social compact doctrine or terminology always interprets the compact in terms of its ends or purposes, rather than its origins. This “teleological” contractarianism naturally has little to say about those origins, treating them as purely speculative, and probably irrelevant as well. If this position needed an intellectual pedigree, it could find one in David Hume, as we have seen, and to a degree in John Locke himself. It is Franklin’s interpretation of public utility, and his observation of what serves it, that is determinative in all matters of private morality and public institutions. This had been his turn of mind ever since his early decision that morality must serve the goods of “Truth, Sincerity .&Integrity in Dealings between Man & Man,” regardless of what “metaphysics”might suggest. Such reasoning yielded a private, and a public, morality less concerned with forms and more concerned with results, resting less on abstract reasoning and more on the prudence that could maximize the goods to which society is dedicated.

SHAPING CIVIL SOCIETY Despite his involvement in some of the most momentous political developments of the age, from the geopolitics of empire, to American independence, to constitution-writing, Franklin was more concerned with matters of culture, social morality, or what is today called “civil society,” than with matters of comprehensive political principle. We have already

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heard his comment at the Federal Convention that constitutional form is less important than how it is administered (1140).We might also recall his famous reply to one who inquired what form of government he and the rest of the Convention had given the Americans: “a Republic, if you can keep it.” Only a populace with the proper temper is capable of sustaining a republican form of government. A democracy requires certain virtues, certain attitudes, a certain character in its people, and Franklin is perhaps unique among the Founders in the amount of attention he gave to the education of the generality of Americans, with the view that this was in the end more important than institutions. Franklin’s proposal for a school curriculum delineates most explicitly the political education he believes a free people needs. But this proposal is in reality only the smallest part of his educational project. All his bestknown writings are in fact part of a broader educational project. This project employs a complex strategy to cultivate, by stages, the various virtues that American democracy would require. Political education is in some sense the capstone, but a capstone requires an arch to support it. Franklin devoted more attention to this arch than to the capstone. For Franklin, the task of a founder is not simply to write a free constitution, but to form citizens who can make proper use of it. This task is difficult to fit into the classic social compact approach to society. Compact theory envisages rational individuals deciding individually to form a society and supporting the society once formed out of the rational conviction that it is to the advantage of each party. This is the very point of portraying society as a compact, on the analogy of ordinary business dealings. One problem with this way of imagining the origins of society and explaining its basis is that it seems to leave out of account the need for founders and for social and political education. If we concentrate on those needs, we are more on the terrain of Rousseau’s legislator than of classic compact theory.19 FranMin’s great interest in what we might call the preconditions of a successll social compact is one more thing that takes him outside the compact tradition. Franklin developed an interest in this sort of education at a remarkably early age. When sixteen years old and a printing apprentice to his brother, he penned a series of essays over the pseudonym Silence Dogood, a matron “very jealous for the Rights and Liberties of my Country,” and possessed of “a natural Inclination to observe and reprove the Faults of others” (8). This was a literary device Franklin returned to again and again, writing at various times as the Busy-Body, a self-proclaimed censor

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morum;Alice Addertongue, who found it her “Duty as well as Inclination, to exercise my Talent at CENSURE, for the Good of my Country folks” (196); and of course, Poor Richard. All these personages make use of homespun wit to chide their fellow citizens into virtue. The Busy-Body took it upon himself to bring to shame those follies and “little Vices” that were beneath the notice of the law (104). For the virtues and vices with which we are now dealing, those that create a culture that sustains or fails to sustain free government, are often outside of the province of law, though they are of great concern to society. Policing these moeurs cannot be the role of government, or only marginally so, but they must be policed, for the health of democracy. The first and humblest of these virtues are the virtues of economic self-reliance. Industry and frugality are so closely associated with Franklin that numerous critics have accused him of being the apostle of a bloodless shopkeeper’s morality.20 He, as Poor Richard, places undeniable emphasis on these; but the reason for this is that they are the first stones of a foundation. In the Autobiography, Franklin tells us that he devised Poor Richard in part as a “Vehicle for conveying Instruction among the common People, who bought scarce any other books” (1397). For these people, who were the majority, prosperity was necessarily, and legitimately, the first concern. In fact, they had to be encouraged to tend to this concern, in the proper manner. General prosperity is a necessary prop to free government as we understand it, but people must be willing, and able, to seek that prosperity industriously and honestly. This is not something to be taken for granted, as the experience of many nations since Franklin’s time has demonstrated. Poor Richard noted that it is more difficult for a man in want to remain honest than “it is hardfor an empty Sack to stand upright‘ (1397; cf. 1258). But there is more at stake than that, for economic self-reliance is also an ingredient of, and a training in, other forms of self-reliance more closely allied to political liberty and self-government. Once individuals have been educated to pursue their interests properly, they must be turned to the service of the public good. Franklin’s educational strategy is to turn them in this direction once economic sufficiency and the virtues of honest gain have been secured. What follows might be called their education to citizenship. Franklin’s Autobiography, his most systematic educational work, places at least as much emphasis on public-spirited citizenship as on the economic virtues that are its precondition. It is the work‘s lessons on citizenship that represent its true center, its moral peak. In it, we see Franklin

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laboring first for his own economic security but also for the public good. His efforts are truly inspirational: he organizes efforts to improve night watches, street lights and street cleaning in Philadelphia; puts together fire and civil defense brigades; and musters support for the first public library, hospital, and school in Philadelphia. He even portrays his scientific work as service to the public weal (1417-18), and founded the American Philosophical Society as a way of “Promoting Useful Knowledge” in the New World (295). These episodes are recounted, not in order to glorify Franklin, or even to tout individual public improvements, but to offer a model of active citizenship that we are to follow. Franklin was firmly of the opinion that “one Man of tolerable Abilities may work great Changes” for the good, if he forms a plan and pursues it diligently (1397). Note that Franklin does not rely on exceptional ability, but only a devotion to the public good and the discipline to pursue it. These are qualities that many can share, and the Autobiography is dedicated to getting as many as possible to share them. Franklin was not against government taking over many of the tasks he describes, but he saw that the health of a democratic society rests on individuals’ willingness to devote time to the public good. Poor Richard once wrote, “The first Mistake in publick Business, is the going into it,” but there are many opportunities for public-spirited action outside of politics, and as Tocqueville was to argue later, a successful democracy must have citizens able and willing to seize those opportunities.21Poor Richard, like Silence Dogood and the Busy-Body before him, gently but insistently pushes his readers to good citizenship in this sense. Franklin’sAutobiogfaphy does the same, while showing the way to higher forms of public service, even politics, for those with the talent and leisure. But Franklin’s strongest message, throughout, is the importance of active citizenship in the greatest possible number of people. Indeed, one reason Franklin could have such disdain for aristocratic pretension is that his vision of healthy democracy relies less on leadership from above, replacing it instead with widespread citizen initiative. Here, Franklin’s thinking more closely matches the social compact approach. The formation of a society may require more attention to the formation of citizens than the classical compact model provides, but once those citizens are properly formed, society can become something of a self-moving wheel. The individual initiative that was not sufficient to get it started may still keep it going, in line with the suppositions of compact theory. Fire and civil-defense brigades, privately initiated public improve-

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ments, clubs to advance the public good in every direction-these are all in a sense small social compacts that contribute to the larger one and keep it healthy. Franklin formed one society, the Junto, as a debating forum to which members would bring (among other things) ideas for public improvements. If the group endorsed one of these ideas, the members would recruit others to its cause, using their personal influence to sway public opinion in its favor. Models for other clubs of private individuals bending their ingenuity to the public good are found in Franklin’s writings (e.g., 179, 1396). This is the model of democratic citizenship-cum-leadership presented by the Autobiography:public-spirited individuals conceive solutions to public problems and use their private influence to implement them. The Busy-Body warned that “What is every Body? Business is no Body4 Business’’ (92); but a healthy democracy requires people who are willing to make it their business, willing to shoulder a part of the public burden. Franklin’s comprehensive educational project is to form a culture of active engagement in which everyone feels a duty to meddle in the common affairs. If his example and his writings contributed to such a culture in America, Franklin would consider that his most important contribution as a Founder.

CONCLUSION Franklin’s thoughts on social and political matters put him outside the social compact tradition, strictly speaking. H e occasionally makes use of language and concepts from the social compact lexicon, but when he does, the compact itself is of secondary concern. Social goods such as prosperity, liberty, integrity in dealings between man and man, and pleasant social relations in general are the criteria by which Franklinjudges social and political institutions. His thinking is “teleological”:institutions are judged by the extent to which they serve these ends, rather than the extent to which they measure up to the terms of a putative compact. The test is post hoc, utilitarian, and rooted as firmly as possible in experience. This is no accident, for Franklin developed his moral standard from experience after learning (from experience) that “metaphysical reasoning’’ was a dangerously uncertain guide. At the heart of Franklin’s understanding is his view of the (at least partially) sociable nature of man, and this too takes him outside the purest type of compact thinking. The standard by which he judges public and

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private morality derives from his understanding of pleasant and profitable social relations. In this sense we would have to say that human sociability circumscribes the compact, gives it its purposes and limits. When Franklin uses compact language, it is but another way of making this simple point: men joined society in order to advance their happiness. Rather than leading to an analysis of the founding moment or original compact, however, this thought leads Franklin to an analysis of happiness and its empirical preconditions. He believes men should judge their social arrangements in the light of their purposes, not their origins. In a sense, the difference is not significant. Franklin is in essential agreement with Locke and the orthodox contractarians as to proper political arrangements; he simply agrees with Hume rather than the contractarians that the elaboration of society’s ends, rather than its origins, is the best way to uncover the proper political institutions on the level of thought and to secure them on the level of practice, But Franklin’s vision of happiness in a successful social order reaches beyond political institutions to culture and private behavior. He was acutely aware that free institutions could flourish only if the people they were meant for had the proper attitudes and motivations. Throughout his life, he dedicated himself more to the task of shaping these attitudes and motivations than to political issues proper. He strove to cultivate virtues like industry and frugality, to push his fellow citizens to honest gain. This would contribute to public and private prosperity, both of which are vital to the success of democracy. He then sought to cultivate the virtues of a more active citizenship, which are equally necessary to the maintenance of free institutions. Franklin wishes us all to become actively dedicated to the public good. But we are not to do this in the spirit of duty or drudgery. Franklin is after all the apostle of happiness, private as well as public. Central to his teaching is the postulate that a life of honest prosperity and public service is a supremely happy one. This is a lesson best conveyed not by sermon but by example, and Franklin’s Autubiogruphy does just that. If Franklin quarrels with social compact thought on the grounds that experience rather than a priori reasoning must be our guide, the true test of his own moral teaching must be that it leads to a life of happiness. Autobiography, rather than philosophy, might then be the most appropriate as well as the most cogent way of establishing such a teaching. Like history, it represents the true test of experience. No one can read Franklin’s Autobiography without seeing the happiness of the life being described. We watch Franklin earn-

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ing prosperity and reputation, developing the virtues of social intercourse and public service, living a life of benevolent sociability, all on the basis of lessons he learns and then teaches. If we leave the Autobiography with a sense of satisfaction, and we do, it is because we have seen the happiness of a life devoted not just to prosperity but to friendship and public service, the very goods for which society was created.

NOTES 1. David Hume, “Of the Original Contract,” in Essays Moral, Political, and Literary, ed. Eugene F. Miller (Indianapolis: Liberty Classics, 1987), 465-87. 2. Benjamin Franklin, Writings, ed. J. A. Leo Lemay (New York: Literary Classics of the United States [Library of America], 1987), 1317. Henceforth, citations from this volume will be placed in parentheses in the text. 3. O n this aspect of rights thinking, see Mary Ann Glendon, Rights Talk (New York: Free Press, 1991),especially chap. 2. Ronald Dworkin speaks of rights as “trumps.” See his Taking Rights Seriously (Cambridge: Harvard University Press, 1978),xi. 4. The Papers of Benjamin Franklin 16, eds. Leonard Larabee, William Willcox, Barbara Oberg, et al. (New Haven, Conn.: Yale University Press, 1959- ), 319. The pamphleteer was one Allan Ramsey, and though the pamphlet was published in 1769, Franklin’s marginalia cannot be dated with certainty. The editors of his Papers suppose it was close to the publication date. 5. Franklin makes this point explicitly in marginal comments to another pamphlet, at about the same period (Papersof Benjamin Franklin, 1 7 398). 6. Papers of Benjamin Franklin, 16: 305-6. 7. Papers of Benjamin Franklin, 16: 316,325 8. Locke, Essay Concerning Human Understanding, “Epistle to the Reader;” Book I. Chap. 1. Subsequent references to this work will be noted in the text by book, chapter, and section numbers. 9. See, for example, First Treatise $Government, 5546-47, 86; Essay IV.17, 24; IV.19.4,14. For a more complete discussion, see Steven Forde, “Natural Law, Theology, and Morality in Locke,” American Journal of Political Science 45, no. 2 (April 2001): 396-409, especially 398-400. 10. Hume, “Of the Original Contract,” 471. 11. Hume, “Of the Original Contract,” 479-80; cf. Hume, A Treatise $Human Nature, ed. L. A. Selby-Bigge (Oxford Oxford University Press, 1965), 477, 498-500. 12. Of course, these ends are defined by happiness and utility, not perfection of soul. Hume’s “teleology”is not to be confused with the classical or Christian variety.

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13. Franklin’s proposal includes extensive citations from educational authori-

ties in the notes, some of whom he quotes recommending compact theorists (e.g.,

337n).These recommendations do not make it into his own curriculum however. Locke is an extensive presence in this proposal, but it is his educational thought, not his political theory, that Franklin makes use of 14. Cf.John W. Danford, David Hume and the Problem of Reason (New Haven, Conn.: Yale University Press, 1990), chap. 6. 15. Pope, Essay on Man, 111.303-4. This very couplet is repudiated by Alexander Hamilton in Federalist #68. The succeeding couplet is also perfectly to Franklin’s taste: “For modes $faith let graceless zealotsfight; / H i s can’t be wrong whose I@ is in the right.” 16. Max Farrand, ed., The Records ofthe Federal Convention $1787, vol. 2 (New Haven, Conn.: Yale University Press, 1937),204-5,249. 17. Farrand, Records ofthe Federal Convention, 1: 48,2: 542. Franklin’s support for a single house is a surmise of Madison based on the Pennsylvania delegation’s behavior and Franklin’s known beliefs. 18. This entails presumably that if Franklin were to be convinced that restrictions on property damaged social utility, his doctrine would change. 19. See Jean-Jacques Rousseau, On the Social Contract, ed. Roger D. Masters, trans. Judith R. Masters (New York: St. Martin’s Press, 1978), Book 11,chapter 7, “On the Legislator.”The succeeding chapters elaborate on the need toform a people before it is fit for society. 20. Max Weber, D. H Lawrence, and Mark Twain all leveled this charge against Franklin. For a brief synopsis, see Leonard Labaree’s “Introduction” to Franklin’s The Autobiography OfBenjamin Franklin, eds. Leonard Labaree, Ralph L. Ketchum, and Helen C. Boatfield (New Haven, Conn.: Yale University Press, 1964), 1-40. 21. Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer (New York Doubleday, 1969), 1.1.5,1.2.6,11.2.8,11.4.6.

Index

Adair, Douglas, 90,92,94, 140 Adams, John, 85,91,94,97,106,113, 127,131,139,140,142,144,161, 231-33,240-53 Adams, John Q;ncy, 156 Adams, Samuel, 141-42 Alfred the Great, 61 Aquinas, Saint Thomas, 46-48,52, 55,66,71,89,93 Aristotle, 37-39,50,66, 71,112,148, 172-75,180,195,235,251 Bacon, Francis, 13,31-32,171-72, 175,194 Becker, Carl, 140 Bentham, Jeremy, 70 Bessette,Joseph M., 73,139 Blackstone, William, 39-48,50-73,89, 94,136,144,178-79,191,194-95 Boorstin, Daniel, 55,73 Borgia, Cesare, 32 Bork, Robert, 145 Brandwein, Pamela, 192 Brooks, Robin, 227 Brutus, 116,117,142 Burke, Edmund, 40,58,135-37, 144-45,148,211,228 Butler, Joseph, 253

Calvin, Robert, 170-71, 177, Cartwright, Major John, 144,147, 161,196 Cato, 40 Choate, Rufus, 140 Clausewitz, Carl von, 217-19,221, 229 Coke, Sir Edward, 40-41,53-54,61, 70,73,170-80,194 Cornwallis, General Charles, 207 Corwin, Edward, 55,70,72 Cosgrove, Richard A., 71-73 Cowell, John, 72 Danford, John W., 276 De Pauw, Linda Grant, 227 Diamond, Martin, 124,143 Dickinson,John, 125-26,132-33, 143-44 Dostoyevsky, Fyodor, 80 Douglas, Stephen, 101-2,140 Dunlap, John, 139 Dunn, John, 31,70 Dworkin, Ronald, 275 Edward the Confessor, 61 Erler, Edward J., 103,140, 194-95, 230 277

278

Index

Farber, Daniel A., 194 Faulkner, Robert, 31,35 Filmer, Sir Robert, 10,64, 170 Fink, Zera S., 195 Finnis, John, 43,62,66-68,71,73 Flannery, Christopher, 144 Flower, Milton E., 144 Foner, Eric, 100, 140 Forde, Steven, 275 Fortin, Ernest L., 93 Fox, Charles, 40 Franklin, Benjamin, 85,255-76 Glendon, Mary Ann, 275 Gray, John, 81,92 Grotius, Hugo, 52,265

JafEa, Harry V., 30,137,139,145,156, 160-61,163,166,176,182,192, 195-96 Jay, John, 87,140,200,228 Jefferson,Thomas, 15,30,32-33,56, 59,69,85,87,93,98,100-102, 104,106,110,121,124,126-27, 132-33,137-41,144,147-61, 169-70,176,180,190,194-96, 201,222-23,225,227-28 Josephson, Peter, 32 Julianus, 59 Kaczorowski, Robert J., 192-93,196 Kammen, Michael G., 33 Kendall, Willmoore, 38,70 Kennedy, Duncan, 73 Kent, James, 186,191,196 Kercheval, Samuel, 32,147,161 Kettner,James H., 194 King Charles 11,104,140 King James I, 170-71,176-77,195 King John, 171

Haakonssen, Knud, 92 Hamilton, Alexander, 3585-86,90, 94,102,106,114,119,130,134, 139,140-44,199-230,276 Hart, H. L. A., 73 Hartog, Hendrik, 71,141 Hegel, G. W. F., 69 Helvidius, 223,229 Hill, Robert S., 92 Hobbes,Thomas, 3,32,34,39,44, 52-54,56,61,65-68,70,72-73, 78,84,106,147-49,195,231-40, 242-44,246-53,264 Hofstadter, Richard, 116, 135, 142-43 Holdsworth, William, 71 Hooker, Richard, 11,251-52 Honvitz, Morton, 71,141 Howard, Jacob, 167-68,190-94 Howard, Simeon, 115 Hume, David, 40,58,75-94,256, 263,26566,269,274-76 Hyman, Harold M., 192

Labaree, Leonard, 276 Lampert, Laurence, 32 Lawrence, D. H., 276 Lee, Arthur, 139 Lenin, V. I., 229 Lincoln, Abraham, 34,101-3,130-31, 139-40,144,152,160,166,192,212 Locke,John, 1-35,40,48,51-54,56, 58,64-67,71-72,75,78,84-85, 88-89,91-93,99,103,106,125, 128-29,136,139,141-42,147-49, 158,170,178-80,19496,224, 230-32,250-53,256,260,262, 264-65,268-69,274-76 Longmore, Paul K., 142 Lutz, Donald, 40,70

Inglis, Charles, 188 Inglis, John, 187-89

MachiaveJli, Niccolo, 5,32,218,229 MacPherson, C. B., 34

Index

Madison, James, 1,27,30,32,85-87, 92,109,115,117,122-23,142, 144,147,149,15661,180-86, 190,196,199,200-201,218, 222-29,276 Maier, Pauline, 101,140 Manent, Pierre, 31 Mansfield, Harvey C., Jr., 31,33-35 Marciano, Rocky, 100 Marks, Frederick W., 228 Marshall, John, 35,225 Marshall, Thurgood, 107,192 Martin, David, 193 Marx, Karl, 96 McClean, Chief Justice, 188 McNamara, Peter, 93 Mehta, Uday Singh, 31,32 Meunch, John E., 194 Mill, John Stuart, 32 Miller, Eugene, 32,91,275 Milton, John, 265 Montesquieu, Charles Secondat, 25, 40-41,43-44,59-60,64,65,72-73,

85-86,106,134,219,224,228-230 Morgan, Edmund S., 98,123-24, 139,143 Morison, Samuel Eliot, 141 Morris, Gouverneur, 123,143 Motomura, Horoshi, 193 Nedelsky, Jennifer, 106-8,141 Nelson, William E., 110,141,192 Newell, William A., 166 Nietzsche, Friedrich, 32,80,96 Nolan, Dennis R., 41,70-73 Otis, James, 98,102-4,139 Pacificus, 223,229-30 Paine, Thomas, 115,123-24,132,140 Palmer, R. R., 144 Pangle, Thomas, 31-32, 145 Paynter,John, 251,253

279

Petronelli, Goody, 139 Plato, 98,135-36,144-45,175 Pocock, J. G. A., 72 Polk, James, 220 Pope, Alexander, 94,266,276 Pope Paul V, 171 Presser, Stephen B., 141 Price, Polly J., 195-96 Publius, 15,249 Pufendorf, 40,52,265 Rahe, Paul, 32 Ramsay, David, 112,120,135,140, 143-44 Rawls, John, 3,107 Rehnquist, William, 137,145 Reid, John Phillip, 142,144 Reid, Thomas, 93 Roche, John €!, 196 Roos, John, 71 Roosevelt, Franklin D., 106 Rorty, Richard, 39 Rosen, Gary, 32,160 Rousseau, Jean-Jacques, 12,149,211, 228,252,270,276 Rumbold, Richard, 140 Sandel, Michael J., 160 Seliger, Martin, 34 Shain, Barry Alan, 90,94 Shue, Henry, 107,141 Sidney, Algernon, 112,140,260 Smith, Adam, 206,228,251 Smith, Melancton, 200,227 Smith, William, 161,184-86 Socrates, 135, 136,256 Spellman, W. M., 32 St. Germain, Christopher, 45-49,51, 53-55,65-66,71 Stevens, Thaddeus, 165,193 Stoner,James Jr., 41,70,72-73 Storing, Herbert J., 68,73,89,94, 142,144,227-28

280

Index

Story,Joseph, 189 Strauss, Leo, 31,92-94,105,135-36, 141,144-45,250 Thompson, C. Bradley, 232,250-51 Thompson, Smith, 187,189 Thucydides, 209,228-29 Tocqueville, Alexis de, 272,276 Trist, Nicholas €?, 30, 181,196 Trumbull, Lyman, 167,191,193-94 Twain, Mark, 276 Washington, George, 102,112, 117-18,129,133,138,142, 144-45,199-201,207,211, 222-23 Watson, Alan, 72-73 Weber, Max, 276

West, Thomas G., 140,161 Wheeler, Harvey, 195 Whelan, Frederick G., 93 Wiecek, William, 192 William the Conqueror, 150 Williams, Abraham, 145 Williams, Elisha, 69 Williams, Samuel, 113,142 Wills, Garry, 141 Wilson, James, 115-16,126-27,137, 142-43,145,163,192 Wood, Gordon, 135,144 Woodbridge, Frederick, 191, 194 Yarbrough, Jean M., 32,161 Zuckert, Michael, 31-33,70,72 Zweibel, Beverly, 70-71

About the Contributors

Edward J. Erler is professor of political science at California State University, San Bernardino. He is the author of TbeAmerican Polity: Essays on tbe Theory and Practice of ConstitutionalGovernment and numerous articles in political philosophy and constitutional law. Among his recent publications are “Californiansand Their Constitution: Progressivism, Direct Democracy and the Administrative State” and “Symbol and Substance in California’sThree Strikes Law.’’ Dr. Erler has been a member of the California Advisory Commission on Civil Rights since 1988 and served on the California Constitutional Revision Commission in 1996. He recently traveled to Iran. Steven Forde is professor of political science at the University of North Texas. He has published work on classical and early modern political thought, as well as Benjamin Franklin and the Founding. He is author of The Ambition to Rule: Alcibiades and the Politics of Imperialism in Tbuydides. Peter C. Myers is professor of political science at the University of Wisconsin-Eau Claire. He is the author of Our Only Star and Compass: Locke and tbe Strugglefor Political Rationality. He has published articles in the field of American political thought and on Locke. He is currently working on a study of the political thought of Frederick Douglass.

John Paynter is associate professor of politics at the University of Dallas, where he has also served as provost and dean of Constantin College. Dr. 281

282

About the Contributors

Paynter has published on the rhetoric of John Adams, most recently in “The Rhetorical Design of John Adams’ Defense ofthe Constitutions o f . . . America” (Review ofpolitics, 1996). Ronald J. Pestritto is associate professor of politics at the University of Dallas. He is also a research fellow of the Claremont Institute for the Study of Statesmanship and Political Philosophy, and an adjunct fellow of the John M. Ashbrook Center for Public Mfairs. His books include Founding the Criminal Law: Punishment and Political Thought in the Origins of America, and, forthcoming, The Constitutional Thought of Woodrow Wilson. Karl Walling is associate professor of strategy at the United States Naval War College. He is the author of two books: Republican Empire:Alexander Hamilton on War and Free Government, and Strategic Logic and Political Rationality. Bradley C. S.Watson is associate professor of political science and fellow in politics and culture in the Center for Economic and Policy Education, Saint Vincent College. He teaches political philosophy and American political thought. His books include Civil Rights and the Paradox ofliberal Democracy and Courts and the Culture Wars. Thomas G .West is professor of politics at the University of Dallas and a senior fellow of the Claremont Institute. He is the author of PlatoS Apology of Socrates:An Interpretation.A revised edition of his best-selling translation, Four Texts on Socrates: PlatoS Euthyphro, Apology, and Crito, and Aristophanes’ Clouds, appeared in 1998. His most recent book is Vindicating the Founders: Race, Sex, Class, and Justice in the Origins ofAmerica. Several of his essays on American politics and political philosophy are on the Claremont Institute website, at www.claremont.org. Jean M. Yarbrough is Gary M. Pendy, Sr., Professor of Social Sciences and professor of government at Bowdoin College. She is the author of American Virtues: ThomasJeferson on the Character ofa Free People, as well as numerous articles on American political thought, political theory, and public policy. She is currently at work on a study of the progressive critique of the Founders.

About the Contributors

283

Michael Zuckert is the Nancy Reeves Dreux Professor of Political Science at the University of Notre Dame. He has published Natural Rights and the New Republicanism, The Natural Rights Republic, and Launching Liberalism. He is currently completing a book on the Fourteenth Amendment titled Completing the Constitution.

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