Originalism may well include some consideration of consequences, but in a disciplined manner that prevents justices' values from driving the process.
There is an odd reality about the blurbs on the back of books. They are meant for advertisement and not accuracy. On the back of Carli N. Conklin’s The Pursuit of Happiness in the Founding Era (2019) we find one source praising her treatment of a “perennial question in the scholarly literature,” and another proclaiming it to be “the first full scale effort to understand the founding-era meaning of the phrase ‘pursuit of happiness.’” Did anyone notice the tension between these two statements? Her editors should have.
Luckily, Professor Conklin’s efforts stand on their own. It is unfortunate though that the promotions will be among the first things readers will see, because they will be misled and then disappointed, at least in the final and perhaps most alluring claim. And that would be a shame.
The book is decidedly not the only full scale treatment of the meaning of the phrase. Of this fact, Garrett Sheldon is certainly correct: The subject is perennial and has been dealt with extensively as a subsection of many very extensive histories of other broader topics like that of the Declaration, or of Jefferson, or of the Revolution. That is why it is perennial.
And of these treatments, I would count some to have been more extensive, both in their review of the secondary literature of their day as well as in the exploration of all the possible contemporary influences on the document. Herbert Lawrence Ganter, for example, specifically addressed this subject in a two part essay for the old second series of the William and Mary Quarterly way back in 1936. And nary a mention is to be found of that much neglected historian Caroline Robbins and her 1974 essay on the subject. Moreover, Conklin’s review of the recent secondary literature misses some very significant contributions. Allen Jayne’s correction of Garry Wills’ much flawed study of the Scottish influences on Jefferson is the most glaring case in point.
Through the Lens of the Law
But none of this should detract from what Conklin has actually accomplished. It is the work of one specialized in the law who is seeking to understand Jefferson’s rephrasing of Locke’s triad of life, liberty and estates through the important lens of the law, and specifically, through the work of William Blackstone. And that is a worthy if more limited task than a “full scale” treatment of the subject. The specific view of the Declaration as representing a synthesis of ancient, medieval, and modern themes of constitutional, legal, religious, and rational enlightenment elements has long been known among historians. Blackstone reflects rather than originates these elements.
More specifically, this is a study that focuses on a very illuminating reflection and reinforcement of already well established meanings and implications, one that certainly deserves more scrutiny than it has heretofore received: Blackstone’s Commentaries (1765). But the limits of such an approach are also very much set by the scope of Blackstone’s text itself, limits which have their ultimate source in the virtues and defects of the text’s author.
Blackstone was for most of his career torn between being a practicing lawyer and a lecturer at the law. Always a great stylist, he pursued a perfection of prose that revealed the increasing professionalization of the eighteenth century into which he was born. Blackstone excelled in the arts of organization and synthesis.
The Commentaries hit the book market precisely when commercial, political, and administrative developments in the Atlantic world needed to turn out individuals trained up in the ever more complicated administrative and commercial procedures of everyday life, and the work hit its mark as the first accessible digest of the legal system of England.
But Blackstone was no philosopher, and consistency of the leading ideas respecting the spirit of the law was not uppermost in his mind, and Americans were often frustrated by both his deference to Parliamentary supremacy and his devotion to a higher natural law. Prior to The Commentaries, most students of the law had to slog through the sprawling and tedious tracts of Edward Coke. For those of a more scholarly bent, such an exercise was as much a grounding in the discipline as it was a search for the nature and truths of England’s legal development.
Blackstone within Limits
Thus for Jefferson and Adams and other serious students of the law, Coke remained the go-to source, even as they recognized the usefulness of Blackstone. Jefferson would come to explicitly favor Coke in his recommendations to aspiring attorneys: “Coke’s institutes and reports are their first, and Blackstone their last book, after an intermediate course of two or three years,” he wrote to William Duane in 1810. “It is nothing more than an elegant digest of what they will then have acquired from the real fountains of the law.”
Yet, as a digest, or manual of the law, Blackstone affords an excellent window to begin one’s search into the prevailing public meanings of the time. His work is a distillation of the major categories of his age, arranged in a way that clearly reveals major themes and accepted definitions.
Thus Professor Conklin has done us a very useful service in focusing as she does on Blackstone’s understanding of happiness. That she has found in The Commentaries a social and communal sense compatible with the individual’s pursuit of happiness consistent with Enlightenment notions of a natural social order is all to the good. It may indeed help open more legal scholarship to the necessity of exploring themes of self-government and the capacity for the development of rule formation quite apart from modern positivist conceptions. But it is what most historians have accepted for some time.
Make no mistake though. It is important to find this broader meaning of self-government in Blackstone because it shows the general and enduring validity of those conceptions as they existed at the moment of American independence, but even perhaps more importantly as it persisted through the Founding and Early Republic. As attention of contemporaries turned from Coke to the more professionalized and technical training demanded of the last decades of the 18th century, we can see that the socially embedded, largely voluntary associational pursuit of happiness was perpetuated and carried forward.
The real difficulty I have with Conklin’s text, however, is that while Blackstone was a source for many, especially those younger than Jefferson, it was definitely not the only or even most important source in the law that Jefferson or the other members of the committee charged with drafting the Declaration had uppermost in their minds. And while Conklin doesn’t quite assert that Blackstone was the primary avenue of influence, her omission of one of these texts in particular, strongly implies it. What is saddest of all, though, is that she has missed a major opportunity to strengthen her own major thesis about the importance of legal thinking at the time!
Law, Philosophy and Order ala Lord Kames
Here I mean that other great authority in the law, and a well-known lecturer in Blackstone’s own day whom Blackstone himself cited in The Commentaries—Henry Home, Lord Kames. Kames’ Historical Law Tracts were especially important as was his extended treatment of The Principles of Equity. It is in the former that one finds a description of just the kind of natural social order that Conklin ascribes to Blackstone. It was, as she notes, a hallmark of the whole Enlightenment, so my question is, why imply the primacy of Blackstone?
A look at Gilbert Chinard’s 1926 introduction to Jefferson’s legal Common Place Book, reveals soon enough that for the young Jefferson, Kames was far more useful when it came to philosophical questions and was far more extensively cited in the entries before 1776, than was Blackstone. Indeed most of the references to Blackstone, with one exception, appear to be after the critical 879th entry as given by Chinard.
And right here in the very midst of Jefferson’s notes, at the entry numbered 559, we find the very same vision of an orderly and harmonious creation that Conklin sees as illuminating the meaning of happiness, and it is from Lord Kames’ chapter on the history of property in the Historical Law Tracts:
Man by his nature is fitted for society, and society by its conveniences is fitted for man. The perfection of human society, consists in that just degree of union among individuals, which to each reserves freedom and independency, as far as is consistent with peace and good order.
This important source might have become more apparent to Conklin had more attention been given to the historiographic debates over the Declaration dealing with the influences of the Scottish Enlightenment.
For some inexplicable reason however, Professor Conklin devotes her few pages on the Scottish influence solely to Garry Wills’ book, and never mentions the debate that followed his controversial thesis. Not knowing of that debate, she did not pursue the matter to Allen Jayne’s later important corrective of Wills’ argument, missing entirely Jayne’s focus on Jefferson’s letter to Robert Skipwith of 1771 in which Jefferson explicitly cites Kames’ Essays on the Principles of Morality and Natural Religion. (Most likely this was the 2nd Edition of 1758 which was available to Jefferson when he began rebuilding his collection after a fire destroyed his first library in 1770.)
Jayne not only noted the reference to Kames’ Essays, but he analyzed the letter itself, and found that Jefferson gave a simple but powerful summation of Kames’ ideas. Yes, Blackstone and Locke are also on the same list of recommended works, but more than just the sentiment of the letter, Jefferson’s very words matched Kames’ Essay: “Now every emotion of this kind is an exercise of our virtuous dispositions; and dispositions of the mind, like limbs of the body, acquire strength by exercise.”
But there remains an even more compelling reason still, one that even Jayne seems to have missed, a point that is to my mind far more decisive in securing this particular source for our understanding the meaning of the pursuit of happiness in the Declaration.
Kames and the Pursuit of Happiness
At the very end of the second edition of the Essays both “pursuing” and “happiness’ appear together and they appear in a way that directly underscores the associational meaning of the individual pursuit of happiness with the orderly self-government of a largely spontaneous and voluntary social order. I have long suggested this addition to Jayne’s thesis. It is to be found in the concluding poetic verse that Kames had commissioned and inserted at the end of the 1758 edition by the theologian Hugh Blair:
What various and complicated machinery is here! and regulated with what exquisite art! While man pursues happiness as his chief aim, thou bendest self-love into the social direction. Thou infusest the generous principle, which makes him feel for sorrows not his own: nor feels he only, but, strange indeed! takes delight in rushing into foreign misery; and with pleasure goes to drop the painful tear over real or imaginary wo. Thy divine hand thus formed the connecting tye, and by sympathy linked man to man; that nothing might be solitary in thy world, but all tend toward mutual association. (Emphases mine)
Now consider the other members of the committee charged with writing the Declaration: Kames’ works were closely studied and were well known to both John Adams and Benjamin Franklin. Franklin was not only familiar with Kames’ writings, but was a personal friend of his lordship. So, it is fair to reason that Adams and Franklin would not only have permitted Jefferson’s alteration of Locke’s triad, they would have heartily endorsed it.
It is a good thing to look to Blackstone. His reach went far and wide, especially in the Founding era, which is the real substantive point of Conklin’s study and it is this theme that is announced in the subtitle. That goal is the major focus of her application of Blackstone to the interpretation of the distinctive phrasing employed by Jefferson as it was understood during the early republic.
But The Commentaries is neither the main source of the meaning that runs through the “pursuit of happiness” nor is it the best illustration of its meaning at the time the Declaration was composed. That rather minor note in what is otherwise an important new study, would be to literally put the cart before the horse. With that caveat in mind, Conklin has made an important addition to our understanding.