One can hardly deny that natural rights arguments of a Lockean strain were a key part of that fateful period from 1760-1776.
Why should we go to the trouble of trying to understand correctly the political theory of the American Founding? I can think of three reasons.
There might be a strictly historical interest: to see how men thought and lived and acted in a time (if not a place) different from our own. Of course, this leads us to ask, why study history?—but here my concern is simply with the achievement of historical understanding, understanding men as they understood themselves and observing their thoughts and lives as a traveler might try to capture a culture and country in a distant corner of the globe, if there still were any. That effort could itself be preparatory to a philosophical appreciation of the ways of gods and men, so to speak, but it has a certain integrity in itself. Indeed, it often requires great self-discipline to achieve genuine historical knowledge, for we seem disposed to see, and in a sense cannot avoid seeing, everything from our own perspective and to assume our concerns regnant in every time and place.
Secondly, the thought of the Founders is worth studying for the sake of illuminating the meaning of the Constitution. Many patrons of this website probably read the Founders with this in mind, and whether or not one is a strict originalist, it is a valuable study. A judge in the mold of Justice William Brennan might read the Founders to show why today one wouldn’t want to be bound by their views, while a faithful originalist like Justice Clarence Thomas would read them to learn the meaning of a text he considers authoritative. In both cases it would be preferable to speak with knowledge of the Founding rather than thoughtlessly to attribute to the Framers one’s own ideas.
Finally, one might study the Founders simply to learn from them. For it is hard to deny that they possessed no small measure of political wisdom, indeed sufficient wisdom that even their mistakes and injustices are instructive.
In The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom, Thomas G. West admits only to undertaking the first of these tasks, but it is difficult to read the book without concluding that he really means to probe the Founders’ wisdom. The work is organized in three parts. West begins with an overview of the Founders’ political theory, which he defines as based entirely on natural rights rather than being an amalgam of natural rights with some distinct intellectual tradition, such as classical republicanism, Christianity, English common law, or Thomistic natural law.
In other words, begin with equal natural rights to life, liberty, property, and the pursuit of happiness—that is, with the absence of natural rule and subjection. Recognize that government exists to, and only to, secure these rights. Note that since men naturally govern themselves, government can only arise with their consent, most fundamentally in the formation of a social contract; and they retain their right to consent to the activities of government, as well as their right to form associations with their fellows for a whole variety of civil purposes. And of course don’t forget their right to revolution should government go seriously astray.
The outline is obviously from the second paragraph of the Declaration of Independence, but West also draws his evidence from a number of other public documents, including the Northwest Ordinance, the Constitution, and especially the constitutions of the states, as well as the public writings of the major Founders—particularly George Washington, Benjamin Franklin, Thomas Jefferson, James Madison, Alexander Hamilton, and James Wilson, not to mention lesser known figures such as Theophilus Parsons and Zephaniah Swift.
The doctrine of consent explains the Founders’ republicanism, according to West, so there is no need to reach back to Aristotle or Sparta, or even to Niccolo Machiavelli. Traditions such as Christianity and common law make their contribution only after they have been purged of anything inconsistent with natural rights. As for natural law, West reminds us of its mention in the Declaration’s first paragraph, and defines it as perfectly coincident with natural rights: Everyone has the natural duty to respect everyone else’s natural rights.
Upon this theory, according to West, the American Founders shared a substantial consensus, and they established a natural rights republic not only through the federal Constitution but in each of the states.
Parts two and three elaborate upon the Founders’ theoretical consensus by using it to explicate their public policy in two great areas of concern: the protection of morality and the regulation of economic life. This makes for an elegant and original argument, since it allows West not only to elaborate the theory of natural rights but to do so in two directions, first looking backward to classical thought with its concern to cultivate virtue, then looking forward to modern economism, whether socialist or libertarian.
The discussion of morality is particularly interesting; the topic has been neglected in accounts of the Founding that focus almost exclusively on the federal government. Using as a heuristic John Locke’s fourfold division of moral law into divinely revealed law, the law of nature, civil law, and the law of public censure or opinion, West insists that the Founders’ interest in morality was defined by their recognition that republican government requires certain virtues on the part of its citizens, and that government could rightly and should prudently promote public education, religious belief, moral behavior, family formation, and civic identity, all for the sake of securing natural rights.
The family receives West’s particular attention, for the Founders endorsed it as the place to form good citizens. He does not shy away from explaining their laws on sexual behavior and the different roles of the sexes as they can be derived from natural rights, noting for example the turn away from patriarchalism and from prosecution for sexual sin after the Revolution. He shows how the Tocquevillean arrangement of equality of the sexes in the context of their separate social roles was explained and even cultivated, the Founders having developed their basic rules for moral education to apply to all citizens even as they recognized certain manly virtues as particularly suited to political life.
West neither endorses this arrangement nor denounces it. He does note its instability, not least because in the marriage contract, unlike the social contract, there might not be opportunity for reconsidering one’s consent.
I found myself in almost complete agreement with the arguments in part three about the Founders’ views on economic life: about the interplay between acquisition and possession, about the connection between the police power and the common-law maxim to “use your own property such that it does not harm another,” about the encouragement of widespread ownership and the special threat of government intrusion on the very property rights government is designed to protect, about the presumption in favor of free markets, about the importance of contracts, and about the imperative for sound money. I think West misses what Jefferson means when he says ideas “cannot, in nature, be a subject of property” (that is, because they are shared when understood, a conception different from grounding copyright in Lockean labor, as the French do). Nor does he sufficiently address the Founders’ acceptance of the principle of inheritance, signaled in the preamble’s mention of “our posterity” (although he’s correct in noting that the English law of primogeniture and entail needed to be altered for a republican age). Still, there is much to be learned from West’s discussion, and much learning conveyed in it.
The book is looking for debate, though, not acquiescence. Let me therefore raise a few objections to the argument or its execution.
West’s failure to distinguish political philosophy from political theory makes it too easy for him to dismiss competing interpretations of the Founders’ work and its vulnerabilities. We who teach in the field often elide the terms when we describe what we do to our colleagues in political science, on the one hand, and to those in the departments of philosophy on the other. But in speaking of the political theory of the Founding, West dodges the question of its relation to the account of natural rights and natural law in political philosophers such as Thomas Hobbes and John Locke.
He uses Locke from time to time to clarify and elaborate the Founders’ theory, as I say, but he backs away from him whenever the Founders did not agree with his conclusions. This prompts one to wonder, did the Founders pull back from logical implications they did not want to face, or did they find Locke’s theory philosophically inadequate?
West can only refute the amalgam theory—the view that the Founders drew on philosophically distinct and therefore philosophically incompatible political philosophies or fundamental traditions—if he can show that the Founders dismissed Locke for theoretical reasons, not just to avoid facing the practical consequences his principles demanded (for example, permitting divorce). The argument of Leo Strauss in the first place, and his successors such as Harvey Mansfield and Thomas Pangle, is that there are aspects of Locke’s political philosophy, not least its deep indebtedness to Hobbes’ philosophy, that lead eventually but inexorably to the materialist individualism and anomie of our current predicament—in other words, toward a crisis of liberalism—and that insofar as the Founders invited Locke into their homes and made his theoretical framework their own, they risked undermining their handiwork.
In short, if the Founding is Lockean, it is no amalgam, but it is unstable, carrying with it untoward Lockean consequences. If it is only partially Lockean, it might avoid the bad consequences, but would do so by being less pure (by being amalgamated). To be less abstract: The weakening of the family, enormous economic inequality, and maybe even eventual recourse to executive predominance arguably follow from Lockean political philosophy even if none of this is what the Founders had in mind.
In raising a second objection, I return to my opening query. What is to be gained by searching for the political theory of the Founding if the Founding is not philosophical—if it is not, that is, persuasive philosophically? As I said, knowing the political theory of the Founding would help us interpret the country’s fundamental laws—its organic laws, including the Declaration of Independence, as West explains—but it would not bind us beyond the force of those fundamental laws themselves. Knowing the theory of natural rights can help us interpret the powers of government and the rights that are reserved, but it cannot make us believe in the truth of natural rights.
Precisely the meaning of freedom of conscience (the most inalienable natural right, West concedes) is that we are not bound as citizens to adopt any political or other creed, provided that we obey the laws for our own good reasons. A political theory might animate a political party, but I don’t think it can bind a society, or at any rate our society. I agree with West that there are tendencies in any regime that give it a character, whether or not that character is intended. But the truth of natural rights is, paradoxically, that no one’s account of the political theory of natural rights has authority beyond its own persuasive force—and that it consequently might find itself qualified or compromised, even as a guide to interpreting organic laws, by other truths that individuals perceive or other commitments they have undertaken.
It seems to me, third of all, that the author strains natural rights to make them serve as a grounding for some of the constitutional and legal practices he describes and seemingly admires. Yes, equal rights explain why, after the Revolution, the law of entail had to go and maybe why the civil law in sexual matters began to focus more on the consequences for children and less on the intrinsic virtue of the partners. But I do not think marital love and chastity are adequately accounted for—or genuine lifelong attachment adequately reinforced—by a theory of natural rights. The family depends on sacrificial love, not only mutual interest. As Tocqueville writes in a slightly different context, Americans explain their virtuous actions as flowing from self-interest rightly understood, but in fact the habit of acting out of enlightened self-interest leads unawares to habits that are virtues in the Aristotelian sense, imprinted upon souls.
Here is another example of asking natural rights to do more work than they can. Natural rights theory taken alone does indeed allow that any group can determine its membership and exclude others, but except in the case of excluding people who do not believe in rights, I do not see how it guides the decision of whom to invite and whom to exclude. Either that decision is arbitrary or there is some other law or theory or creed at work; if the latter, the creedal or other theoretical element is likely to have an effect after admission. Likewise, does not the acceptance of inheritance as legitimate property also suggest a source of good other than natural rights? Can we even explain the value to us of our constitutionalism without recognizing it as an inheritance?
My fourth point concerns West’s attitude toward the relation of the Founders’ theory to our predicament today. I think he is being a bit cagey when he says he is only doing history, just elaborating what the Founders thought, not taking a position on whether or not they were correct, much less on how their theory might apply to us. Leaving aside the question of whether any historical thought can be sufficiently described apart from consideration of its truth, his text is full of contrasts between the Founders’ policies and ours, inviting comparison, not just understanding, and in numerous passages he juxtaposes quotations from the Founders and from modern scholars, putting them in dialogue with one another. The point at which the moderns go wrong is identified: in economics, in the Progressive era; in morals, not really until the 1960s. But the author never tells us what pushed Americans off the rails. Was it that they abandoned the Founders’ theory, thinking it a constraint on their desires or their vices? Or did they become persuaded it was not true, or not just, or not good? This book’s strength is that it invites such questions; more is the pity that its author avoids following the trail toward which the exposition points.
My fifth point is a bit of a bone to pick, but given that it happens more than once, I’ll pick it. West has a way of warping the meaning of an author or speaker he cites to make a point, criticizing his source for something the source did not say.
Discussing the difficulty of squaring Jefferson’s principle of equal rights with his notorious reflections on black inferiority, he quotes James W. Ceaser’s statement of the problem as a condemnation of Jefferson, ignoring Ceaser’s careful discussion of Jefferson’s reliance on natural history and its interference with natural rights. Quoting Mansfield to prove his own views more manly, West says Mansfield distorts the “founders’ ‘liberal state’” by calling it “gender-neutral.” But in the passage in question, Mansfield is talking about our own post-Nineteenth Amendment age, not the beginnings of the republic. He takes a gratuitous swipe at a comment President Eisenhower made in a press conference at the time of the post-Stalin transition of power in the Soviet Union, as if it proved Eisenhower soft on communism, or deficient in understanding America, that he would seek not to provoke a potential Soviet counterpart into a long-distance kitchen debate.
My sixth point is more substantive. The author does not, in my opinion, do an adequate job accounting for slavery and race and their place in the United States. Of course he acknowledges slavery’s contradiction with natural rights, and helpfully suggests that antebellum Americans, unwilling to accept blacks as fellow citizens, may have been extra-wary of emancipation because of the absolute freedom he believes the Framers asserted for those within the social contract to exclude others. But he does not seem to think that this points to the inadequacy of natural rights theory, or that this explains its abandonment after the bitter demise of Reconstruction.
No, a book about the Founding need not be at the same time a book on American political development, but one wonders what he would say to Herbert Storing’s argument that the theory of natural rights was ambivalent in its advice to the Founders on the slavery question, putting, as it did, such a premium on self-preservation. What of the possibility that Reconstruction proved the inadequacy of natural rights as a guide to public policy? What of the claim that natural rights theory is too superficial to supply the moral resources for coming to terms with the legacy of systematic injustice, given that it places scant value on atonement or forgiveness—and makes no place for a sense of tragedy or a consideration of tragedy’s significance to political life?
Finally, a word is due about the comparison to Plato with which The Political Theory of the American Founding closes—and which signals, by the way, the ambition to political philosophy that underlies the project.
In the discussion of property rights, West makes a curious statement: “The easily understood doctrine of natural rights is a sound practical substitute for a complex chain of reasoning showing that property rights are indispensable for human well-being.” Is the political theory of natural rights, then, a rhetorical shorthand for something more complex and perhaps closer to Plato or at least to Aristotle? I was reminded in reading this of Tocqueville’s statement that next to the idea of virtue, he knew no idea more beautiful than the idea of rights, and that the idea of rights might simply be the idea of virtue applied in the democratic age.
Perhaps something similar is implied when West writes, in the final pages, that “By abstaining from defining and compelling a particular vision of the highest life, government paradoxically enables that life to flourish.”
That seems to me fair praise of the American regime, or at least the noble rhetoric Aristotle called epideictic—a rhetoric that summons what it honors. But I am not so sure that the political theory of natural rights deserves such praise—not, at least, without accounting for that theory’s role in launching modernity and with it modern technology. By showing men how to conquer physical nature, modern technology led us to think our own nature has no limits and no ends. We are better off reviving natural rights as a useful explanation for some of our constitutional virtues, but to counteract the crisis of modernity we need to retain or explore other explanations of our Constitution and other sources of our virtues, too.